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.
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.
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.
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.
and Present Danger"
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
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
"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.
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.
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).