Schenck v. United States - Further Readings

Appellant
Charles T. Schenck
Appellee
United States
Appellant's Claim
That his speech was protected by the First Amendment.
Chief Lawyers for Appellant
Henry J. Gibbons, Henry John Nelson
Chief Lawyer for Appellee
John Lord O'Brian
Justices for the Court
Louis D. Brandeis, John Hessin Clarke, William Rufus Day, Oliver Wendell Holmes (writing for the Court), Charles Evans Hughes, Joseph McKenna, James ClarkMcReynolds, Willis Van Devanter, Edward Douglass White
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
3 March 1919
Decision
Schenck's speech was not protected by the First Amendment and his convictionunder the Espionage Act was upheld.
Significance
This case marked the first time the Supreme Court ruled directly on the extent to which the U.S. government may limit speech. It produced, in the affirmative opinion written by Justice Holmes, two of that fabled jurist's most memorable and oft-quoted statements on the law.
On 15 June 1917, just after the United States entered World War I, Congress passed the Espionage Act, which made it a federal crime to obstruct the country's war effort. The act closely followed the Conscription Act of 18 May, which enabled the government to draft men for military service.
At the Socialist party headquarters in Philadelphia, Pennsylvania, the executive committee quickly passed a resolution authorizing the printing of 15,000leaflets, to be sent through the mails and otherwise distributed to men who had been drafted. The leaflets recited the first section of the Thirteenth Amendment to the U. S. Constitution, which states:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the partyshall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

Advising the reader that a conscript is little better than a convict, the leaflets described conscription as despotism in its worst form and as a monstrous wrong against humanity in the interest of Wall Street's chosen few. "Do notsubmit to intimidation," said the leaflets, urging readers to petition for repeal of the Conscription Act.
"If you do not assert and support your rights," continued the leaflets, "youare helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain." Furthermore, the message implied that there was a conspiracy of cunning politicians and a mercenarycapitalist press that would be aided even by silent consent to the conscription law, and it said the law lacked the power to send Americans to foreign shores to shoot the people of other countries.
"Largely Instrumental in Sending the Circulars About"
As general secretary of the Socialist party, Charles T. Schenck was in chargeof the Philadelphia headquarters from which the leaflets were sent.
Schenck was soon arrested and indicted for sedition in conspiring to cause insubordination in the armed forces and obstruction of recruitment and enlistment. No evidence was presented to prove that he had corrupted even one draftee. Rather, the publication of the pamphlets was itself considered proof enoughof his guilt.
The defense presented a simple argument: Schenck had exercised the right guaranteed him by the First Amendment---the right to speak freely on a public issue.
Found guilty, Schenck appealed through the district courts and to the SupremeCourt, steadfastly insisting on his right to freedom of speech.
Schenck's defense argued that there was not enough evidence to prove that hehimself was concerned with sending out the pamphlets. Reviewing the testimony, Holmes pointed out that Schenck was the general secretary of the Socialistparty and was in charge of the headquarters from which the pamphlets were sent to men who had been called and accepted for military service. The general secretary's report of 20 August 1917, Holmes noted, said, "Obtained new leaflets from printer and started work addressing envelopes." Holmes also pointed out that "there was a resolve that Comrade Schenck be allowed $125 for sendingleaflets through the mail."
"No reasonable man," concluded Holmes, "could doubt that the defendant Schenck was largely instrumental in sending the circulars about."
Justice Holmes wrote the opinion that was shared unanimously by the Court. Noting that no case had been made for the leaflets having actually caused any insurrection, he commented:

Of course the document would not havebeen sent unless it had been intended to have some effect, and we do not seewhat effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out.

Holmes agreed with the defense that the leaflets were entitled to First Amendment protection, but only in peacetime--not in wartime.

We admitthat in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man infalsely shouting fire in a theater and causing a panic.

It may be noted in passing that Holmes never said the theater was crowded; posterity has consistently and mistakenly ascribed that adjective to the quotation. Next came the justice's second memorable phrase:

The question in every case is whether the words used are used in such circumstances andare of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

The "clear and present danger," said Holmes, is a question of "proximity anddegree." When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.
Finally, the justice observed, it made no difference that Schenck and his compatriots had failed to obstruct recruitment. "The statute," he said, "punishes conspiracies to obstruct as well as actual obstruction."

If theact [speaking or circulating a paper], its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.

With that, the judgments of the lower courts were affirmed. Charles T. Schenck, who had been sentenced to 10 years' imprisonment on each of the three counts of the indictment, but with the three terms to be served concurrently, wassent to federal prison.
The Schenck case, in establishing the "clear and present danger" criterion, marked a turning point in First Amendment thinking by the Court. Untilthen, Chief Justice White and other justices had permitted the government tosuppress any speech that displayed a "dangerous tendency." Within months, moreover, Holmes refined his views on the First Amendment when seven of his colleagues found a "clear and present danger" in the Abrams v. United States case. A Russian-born American named Jacob Abrams had been found guilty ofviolating the Espionage Act when he scattered leaflets protesting the sendingof American troops into Russia after the Revolution of 1917. Holmes' dissentobjected that Abrams had been condemned not for what he did but for what hebelieved. The justice insisted that the First Amendment guaranteed one's right to freedom of opinion, if not (as in the Schneck case during wartime) of action. One may assume that Holmes would have continued to insist on theguarantee of this right during the dark days of McCarthyism and the House Un-American Activities Committee.
In 1927, Holmes again dissented when the Court upheld the conviction of Socialist Benjamin Gitlow under a New York state law for advocating criminal anarchy. Holmes found that Gitlow's publications, which advocated overthrowing thegovernment, were protected by the Fourteenth Amendment's due process clauseagainst interference by the state. The justice saw "no present danger of an attempt to overthrow the Government by force" in Gitlow's papers.
Related Cases

• Abrams v. United States, 250 U.S. 616 (1919).
  
• Gitlow v. United States, 268 U.S. 652 (1925).

Clear and Present Danger Test
The U.S. Supreme Court has never held that expressive freedoms of speech, press, and assembly are completely without limits. The difficulty lies in settling on a general standard or test to be applied in determining when a form ofexpression becomes so threatening to society that it deserves no constitutional protection and must be controlled by government.
Such judicial standards or tests, beginning with the "clear and present danger" test, emerged shortly after World War I. The "clear and present danger" test, formulated by Justice Oliver Wendell Holmes in 1919, provided that if actions create a danger to organized society so "clear and present . . . that they will bring about . . . substantive evils" then government must attempt toprevent the activities. Holmes wrote the actions requiring intervention mustbe so imminently threatening they require "an immediate check . . . to save the country." In 1925 the "clear and present danger" test was weakened to the"bad tendency" test requiring only a threat of or tendency toward danger. Much later in 1969 the "clear and present danger" test returned with a "likely to incite" requirement added.
Sources
Abraham, Henry J. and Barbara A. Perry. Freedom & The Court: Civil Rights & Liberties in the United States. New York: Oxford University Press, 1998.