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Civil Rights

Civil Rights

Schenck v. United States



Schenck v. United States, court case of 1919 in which the Supreme Court of the United States first determined the meaning of the freedom of speech protection of the First Amendment to the Constitution of the United States. In a unanimous decision, the Court ruled that there are certain limits to the First Amendment's guarantees of this freedom.


The Schenck case grew out of opposition to U.S. involvement in World War I (1914-1918). Antiwar sentiment in the United States was particularly strong among socialists, German Americans, and religious groups that traditionally advocated pacifism. In response to this sentiment, Congress passed the Espionage Act of 1917. This law provided heavy fines and jail terms for interfering with U.S. military operations or for causing or attempting to cause insubordination or disloyalty in the military. In addition, the act made it illegal to obstruct recruitment efforts of the U.S. armed forces.

Among the many Americans convicted of violating the Espionage Act was Charles Schenck, general secretary of the Socialist Party of the United States. In 1917 Schenck sent copies of a letter urging resistance to the military draft to 15,000 men who had been drafted but not yet inducted into the U.S. military. Schenck's letter claimed that the draft violated the 13th Amendment to the Constitution, which abolished slavery and prohibited involuntary servitude. Schenck argued that conscription (forced enrollment) into the military was a form of involuntary servitude and thus should be prohibited. The letters also claimed that businesses had conspired to lead the United States to war, against the interests of average Americans. Schenck urged readers to assert their individual rights by opposing the draft, but he did not directly advocate violence or evasion of the conscription laws.


Writing for a unanimous Court, Justice Oliver Wendell Holmes, Jr., delivered an opinion (a legal decision) that established guidelines for assessing the limits of free speech. In considering the case, the Court had to decide whether Schenck's language was protected by the First Amendment, even though it might have had the power to cause opposition to the draft. The First Amendment states that "Congress shall make no law...abridging the freedom of speech." The Court concluded that because Schenck's speech was intended to create opposition to the draft, it was not protected by the First Amendment.

A "Clear and Present Danger"

Holmes considered the context of Schenck's speech as well as its intent. In his opinion, he created a new legal test?the clear and present danger test?that was designed to identify when certain forms of speech were not protected by the First Amendment. He asserted that the "question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress had a right to prevent."

The clear and present danger test effectively established a doctrine that allowed the government to suppress political speech under certain circumstances. For example, Holmes admitted that in peacetime Schenck's words would have been protected by the Constitution. But in times of war, "no Court could regard them as protected by any constitutional right."

B "Fire in a Theater"

As a way of explaining the doctrine of clear and present danger, Holmes used what has become one of the most famous analogies in American law. He wrote: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic." The analogy was meant to capture the sense of what a "clear and present danger" might be. However, some legal commentators have argued that the analogy may have been inappropriately applied to the Schenck case. They point out that Schenck did not "shout" anything, but merely sent a letter, which many recipients no doubt never opened or read. In addition, there was no "panic." No recipient of the letter actually acted on it, by protesting the draft or by refusing military service. There was no evidence that the letter elicited any reaction, except from those men who turned it over to government officials.

Holmes's "fire in a theater" analogy also contained the idea that speech could be suppressed if it was false. However, commentators have claimed that Schenck's arguments could not be proved to be either true or false. Rather, they were opinions about the war, held not only by Schenck and other socialists, but also by many leading American politicians, including those in the Senate and the House of Representatives who had voted against the declaration of war in 1917.

Commentators have also argued that the "clear and present danger" test, even if only applied in wartime, undermined the free speech protected by the Constitution. They claim that the Court should not have considered whether Schenck was right or wrong about the cause of the war, or about the constitutionality of the draft. These commentators assert that by prosecuting Schenck for his ideas and beliefs, the Court was closing off debate and stifling the free speech necessary for a democracy.


For fifty years after the Schenck case the Supreme Court applied the clear and present danger doctrine to cases involving freedom of speech. In the 1950s the Court expanded the scope of the doctrine so that it could be used in peacetime to allow for the incarceration of Communists who expressed ideas that most other Americans opposed. Ironically, Holmes and his colleague Justice Louis D. Brandeis modified their interpretation of the clear and present danger standard just six months after the Schenck case, in Abrams v. United States (1919). In his dissent of the Court's decision in Abrams, Holmes argued that only "immediate" danger could serve as a precondition to suppress free speech. But Holmes did not convince the rest of the Court. In fact, the Supreme Court did not adopt this concept until a half century later in Brandenburg v. Ohio (1969).

Contributed By:
Paul Finkelman





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