''Schenck v. United States'', 249 U.S. 47 (1919), was a
landmark decision
Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly u ...
of the
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
concerning enforcement of the
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law enacted on June 15, 1917, shortly after the United States entered World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code (War ...
during
World War I
World War I (28 July 1914 11 November 1918), often abbreviated as WWI, was one of the deadliest global conflicts in history. Belligerents included much of Europe, the Russian Empire, the United States, and the Ottoman Empire, with fightin ...
. A unanimous Supreme Court, in an opinion by Justice
Oliver Wendell Holmes Jr.
Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist and legal scholar who served as an associate justice of the Supreme Court of the United States from 1902 to 1932.Holmes was Acting Chief Justice of the Un ...
, concluded that defendants who distributed flyers to
draft-age men urging resistance to induction could be convicted of an attempt to obstruct the draft, a criminal offense. The
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
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* 1$T, American rapper, singer-songwriter, DJ, and rec ...
did not protect the defendants from prosecution, even though, "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." In this case, Holmes said, "the words used are used in such circumstances and are of such a nature as to create a
clear and present danger
''Clear and Present Danger'' is a political thriller novel, written by Tom Clancy and published on August 17, 1989. A sequel to ''The Cardinal of the Kremlin'' (1988), main character Jack Ryan becomes acting Deputy Director of Intelligence in t ...
that they will bring about the substantive evils that Congress has a right to prevent." Therefore, the defendants could be punished.
The Court continued to follow this reasoning to uphold a series of convictions arising out of prosecutions during wartime, but Holmes began to dissent in the case of ''
Abrams v. United States
''Abrams v. United States'', 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the 1918 Amendment to the Espionage Act of 1917 which made it a criminal offense to urge the curtailment of production of the mat ...
'', insisting that the Court had departed from the standard he had crafted for them, and had begun to allow punishment for ideas. However, the Court has set another line of precedents to govern cases in which the constitutionality of a statute is challenged on its face. In 1969, Schenck was largely
overturned by ''
Brandenburg v. Ohio
''Brandenburg v. Ohio'', 395 U.S. 444 (1969), was a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that sp ...
'', which limited the scope of banned speech to that which would be directed to and likely to incite
imminent lawless action
"Imminent lawless action" is one of several legal standards American courts use to determine whether certain speech is protected under the First Amendment of the United States Constitution. The standard was first established in 1969 in the Unite ...
(e.g. a
riot
A riot is a form of civil disorder commonly characterized by a group lashing out in a violent public disturbance against authority, property, or people.
Riots typically involve destruction of property, public or private. The property targete ...
).
Background
''Schenck'' was the first in a line of Supreme Court cases defining the modern understanding of the First Amendment. Supreme Court justice
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist and legal scholar who served as an associate justice of the Supreme Court of the United States from 1902 to 1932.Holmes was Acting Chief Justice of the Un ...
wrote the often-cited opinion in the case, because of events that were not publicly known at the time. The United States' entry into the First World War had caused deep divisions in society, and was vigorously opposed, especially by those on the left and by those who had ties to Germany. The
Wilson
Wilson may refer to:
People
* Wilson (name)
** List of people with given name Wilson
** List of people with surname Wilson
* Wilson (footballer, 1927–1998), Brazilian manager and defender
* Wilson (footballer, born 1984), full name Wilson Ro ...
administration launched a broad campaign of criminal enforcement that resulted in thousands of prosecutions. Many of these were for trivial acts of dissent. In the first case arising from this campaign to come before the Court, ''Baltzer v. United States'', 248 U.S. 593 (1918), the defendants had signed a petition criticizing their governor's administration of the draft, threatening him with defeat at the polls. They were charged with obstructing the recruitment and enlistment service, and convicted. When a majority of the Court voted during their conference to affirm the conviction, Holmes quickly drafted and circulated a strongly worded dissenting opinion:
Real obstructions of the law, giving real aid and comfort to the enemy, I should have been glad to see punished more summarily and severely than they sometimes were. But I think that our intention to put out all our powers in aid of success in war should not hurry us into intolerance of opinions and speech that could not be imagined to do harm, although opposed to our own. It is better for those who have unquestioned and almost unlimited power in their hands to err on the side of freedom.
Rather than proceed in the face of Holmes's biting dissent, Chief Justice
Edward Douglass White
Edward Douglass White Jr. (November 3, 1844 – May 19, 1921) was an American politician and jurist from Louisiana. White was a U.S. Supreme Court justice for 27 years, first as an associate justice from 1894 to 1910, then as the ninth chief ju ...
set the case aside and word of the situation evidently reached the Administration, because the prosecution was abandoned. White then asked Holmes to write the opinion for a unanimous Court in the next case, one in which they could agree, ''Schenck v. United States''. Holmes wrote that opinion, and wrote again for a unanimous court upholding convictions in two more cases that spring, ''
Frohwerk v. United States
''Frohwerk v. United States'', 249 U.S. 204 (1919), was a United States Supreme Court case in which the Court upheld the conviction of a newspaperman for violating the Espionage Act of 1917 in connection with criticism of U.S. involvement in for ...
'' and ''
Debs v. United States
''Debs v. United States'' 249 U.S. 211 (1919) was a United States Supreme Court decision, relevant for US labor law and constitutional law, that upheld the Espionage Act of 1917.
Facts
Eugene V. Debs was an American labor and political leader an ...
'', establishing what remains the standard for deciding the constitutionality of criminal convictions based on expressive behavior. Holmes disliked legislative-style formulas, and did not repeat the language of "clear and present danger" in any subsequent opinion, however. The Schenck opinion alone accordingly is often cited as the source of this legal standard, and some scholars have suggested that Holmes changed his mind and offered a different view in his equally famous dissent in ''
Abrams v. United States
''Abrams v. United States'', 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the 1918 Amendment to the Espionage Act of 1917 which made it a criminal offense to urge the curtailment of production of the mat ...
''. The events leading to the assignment of the ''Schenck'' opinion to Holmes were discovered when Holmes's biographer Sheldon Novick unearthed the unpublished Baltzer opinion among Holmes's papers at
Harvard Law School
Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts. Founded in 1817, it is the oldest continuously operating law school in the United States.
Each class ...
.
The facts of the ''Schenck'' case were as follows. Charles Schenck and Elizabeth Baer were members of the Executive Committee of the
Socialist Party
Socialist Party is the name of many different political parties around the world. All of these parties claim to uphold some form of socialism, though they may have very different interpretations of what "socialism" means. Statistically, most of th ...
in Philadelphia, of which Schenck was General Secretary. The executive committee authorized, and Schenck oversaw, printing and mailing more than 15,000 fliers to
men slated for conscription during World War I. The fliers urged men not to submit to the draft, saying "Do not submit to intimidation", "Assert your rights", "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain," and urged men not to comply with the draft on the grounds that military conscription constituted
involuntary servitude
Involuntary servitude or involuntary slavery is a legal and constitutional term for a person laboring against that person's will to benefit another, under some form of coercion, to which it may constitute slavery. While laboring to benefit another ...
, which is prohibited by the
Thirteenth Amendment.
After jury trials Schenck and Baer were convicted of violating Section 3 of the
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law enacted on June 15, 1917, shortly after the United States entered World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code (War ...
. Both defendants appealed to the
United States Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
, arguing that their conviction, and the statute which purported to authorize it, were contrary to the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and rec ...
. They relied heavily on the text of the
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and rec ...
, and their claim that the Espionage Act of 1917 had what today one would call a "chilling effect" on free discussion of the war effort.
The Court's decision
![Oliver Wendell Holmes, 1902](https://upload.wikimedia.org/wikipedia/commons/1/1c/Oliver_Wendell_Holmes%2C_1902.jpg)
The Court, in a unanimous opinion written by Justice
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist and legal scholar who served as an associate justice of the Supreme Court of the United States from 1902 to 1932.Holmes was Acting Chief Justice of the Un ...
, held that Schenck's criminal conviction was constitutional. The statute only applied to successful obstructions of the draft, but common-law precedents allowed prosecution for attempts that were dangerously close to success. Attempts made by speech or writing could be punished like other attempted crimes; the First Amendment did not protect speech encouraging men to resist induction, because, "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."
In other words, the court held, the circumstances of wartime allow greater restrictions on free speech than would be allowed during peacetime, if only because new and greater dangers are present.
The opinion's most famous and most often quoted passage was this:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... 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 has a right to prevent. It is a question of proximity and degree.
The phrase "
shouting fire in a crowded theater
"Shouting ''fire'' in a crowded theater" is a popular analogy for speech or actions whose principal purpose is to create panic, and in particular for speech or actions which may for that reason be thought to be outside the scope of free speech pr ...
" has since become a popular metaphor for the dangers or limitations of free speech.
Subsequent jurisprudence
In subsequent cases, when it appeared to him that the Court was departing from the precedents established in ''Schenck'' and companion cases, Holmes dissented, reiterating his view that expressions of honest opinion were entitled to near absolute protection, but that expressions made with the specific intent to cause a criminal harm, or that threatened a clear and present danger of such harm, could be punished. In ''
Abrams v. United States
''Abrams v. United States'', 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the 1918 Amendment to the Espionage Act of 1917 which made it a criminal offense to urge the curtailment of production of the mat ...
'', he elaborated on the common-law privileges for freedom of speech and of the press, and stated his conviction that freedom of opinion was central to the constitutional scheme because competition in the "marketplace" of ideas was the best test of their truth. In ''
Whitney v. California
''Whitney v. California'', 274 U.S. 357 (1927), was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society. ''Whitney'' was explicitly overruled by ''Brandenburg v. ...
'' (1927), concerning a conviction for seditious speech forbidden by California law, Holmes joined a concurring opinion written by Justice
Louis D. Brandeis once again explaining the clear-and-present-danger standard for criminal attempts in these terms, reiterating the argument that political speech was protected because of the value of democratic deliberation. The Supreme Court continued to affirm convictions for seditious speech in a series of prosecutions of leftists, however, culminating in ''
Dennis v. United States
''Dennis v. United States'', 341 U.S. 494 (1951), was a United States Supreme Court case relating to Eugene Dennis, General Secretary of the Communist Party USA. The Court ruled that Dennis did not have the right under the First Amendment to the U ...
'', 341 U.S. 494 (1951) in which a bitterly divided Court upheld the sedition convictions for the leaders of the Communist Party. Judge Learned Hand in the court below and Chief Justice Vinson for the plurality in the Supreme Court cited ''Schenck'', and the language of "clear and present danger" accordingly fell into disfavor among the advocates of free speech and freedom of the press.
A unanimous Court in a brief ''
per curiam
In law, a ''per curiam'' decision (or opinion) is a ruling issued by an appellate court of multiple judges in which the decision rendered is made by the court (or at least, a majority of the court) acting collectively (and typically, though not ...
'' opinion in ''
Brandenburg v. Ohio
''Brandenburg v. Ohio'', 395 U.S. 444 (1969), was a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that sp ...
'' (1969), abandoned the disfavored language while seemingly applying the reasoning of ''Schenck'' to reverse the conviction of a Ku Klux Klan member prosecuted for giving an inflammatory speech. The Court said that speech could be prosecuted only when it posed a danger of "
imminent lawless action
"Imminent lawless action" is one of several legal standards American courts use to determine whether certain speech is protected under the First Amendment of the United States Constitution. The standard was first established in 1969 in the Unite ...
," a formulation which is sometimes said to reflect Holmes reasoning as more fully explicated in his ''Abrams'' dissent, rather than the common law of attempts explained in ''Schenck.'' ''Brandenburg'' is also taken to have repudiated the clear-and-present-danger standard as construed in ''Dennis'', and to have adopted something more like the explication given by Holmes and Brandeis in subsequent opinions. Partly because the standard for protecting expressive behavior under the First Amendment was stated differently in his different opinions, "revisionist" scholars have argued that Holmes changed his mind in the summer of 1919, and that after writing three opinions for a unanimous court, he stated a different and more liberal view in his ''Abrams'' dissent a few weeks later. Bolstered by this argument, a number of advocates for freedom of expression have insisted that the Supreme Court has rejected ''Schenck'' and the majority opinion in ''Abrams,'' and in practice has followed the reasoning of Holmes' ''Abrams'' dissent and Brandeis' and Holmes' concurring opinion in ''Whitney''.
[Thomas Healy, ''The Great Dissent: How Oliver Wendell Holmes Changed his Mind—and Changed the History of Freedom of Speech in America''; Henry Holt and Company, 2013, ]
See also
*
Clear and present danger
''Clear and Present Danger'' is a political thriller novel, written by Tom Clancy and published on August 17, 1989. A sequel to ''The Cardinal of the Kremlin'' (1988), main character Jack Ryan becomes acting Deputy Director of Intelligence in t ...
*''
Freedom for the Thought That We Hate''
*
Imminent lawless action
"Imminent lawless action" is one of several legal standards American courts use to determine whether certain speech is protected under the First Amendment of the United States Constitution. The standard was first established in 1969 in the Unite ...
*
List of United States Supreme Court cases, volume 249
This is a list of cases reported in volume 249 of ''United States Reports'', decided by the Supreme Court of the United States in 1919.
Justices of the Supreme Court at the time of volume 249 U.S.
The Supreme Court is established by ...
*
Shouting ''fire'' in a crowded theater
*
Threatening the president of the United States
Threatening the president of the United States is a federal felony under United States Code Title 18, Section 871. It consists of knowingly and willfully mailing or otherwise making "any threat to take the life of, to kidnap, or to inflict great ...
*''
Abrams v. United States
''Abrams v. United States'', 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the 1918 Amendment to the Espionage Act of 1917 which made it a criminal offense to urge the curtailment of production of the mat ...
'',
*''
Brandenburg v. Ohio
''Brandenburg v. Ohio'', 395 U.S. 444 (1969), was a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that sp ...
'',
*''
Chaplinsky v. New Hampshire
''Chaplinsky v. New Hampshire'', 315 U.S. 568 (1942), was a landmark decision of the US Supreme Court in which the Court articulated the fighting words doctrine, a limitation of the First Amendment's guarantee of freedom of speech.
Background
...
'',
*''
Dennis v. United States
''Dennis v. United States'', 341 U.S. 494 (1951), was a United States Supreme Court case relating to Eugene Dennis, General Secretary of the Communist Party USA. The Court ruled that Dennis did not have the right under the First Amendment to the U ...
'',
*''
Feiner v. New York
''Feiner v. New York'', 340 U.S. 315 (1951), was a United States Supreme Court case involving Irving Feiner's arrest for a violation of section 722 of the New York Penal Code, " inciting a breach of the peace," as he addressed a crowd on a street. ...
'',
*''
Hess v. Indiana'',
*''
Korematsu v. United States
''Korematsu v. United States'', 323 U.S. 214 (1944), was a landmark decision by the Supreme Court of the United States to uphold the exclusion of Japanese Americans from the West Coast Military Area during World War II. The decision has been wid ...
'',
*''
Kunz v. New York'',
*''
Masses Publishing Co. v. Patten
''Masses Publishing Co. v. Patten'', 244 F. 535 ( S.D.N.Y. 1917), was a decision by the United States District Court for the Southern District of New York, that addressed advocacy of illegal activity under the First Amendment.
Background
In ca ...
'', (1917)
*''
Sacher v. United States
''Sacher v. United States'', 343 U.S. 1 (1952), was a United States Supreme Court case in which the Court upheld the convictions of five attorneys for contempt of court.. Belknap (1994), p 225.
Background
The five attorneys who volunteered t ...
'',
*''
Terminiello v. Chicago'',
*''
Whitney v. California
''Whitney v. California'', 274 U.S. 357 (1927), was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society. ''Whitney'' was explicitly overruled by ''Brandenburg v. ...
'',
References
Further reading
*
* Krotoszynski Jr, Ronald J. "The Clear and Present Dangers of the Clear and Present Danger Test: Schenck and Abrams Revisited." ''SMU Law Review'' 72 (2019): 415-44
online
*
*
External links
*
*
*
ttps://books.google.com/books?id=qunnxo05fY4C&pg=RA3-PP3 Transcript of record and case briefs for ''Schenck v. United States''br>
First Amendment Library entry for ''Schenck v. United States''Associated Press article on decision (March 4, 1919)"Supreme Court Landmark Case ''Schenck v. United States''"from
C-SPAN
Cable-Satellite Public Affairs Network (C-SPAN ) is an American cable and satellite television network that was created in 1979 by the cable television industry as a nonprofit public service. It televises many proceedings of the United States ...
's ''
Landmark Cases: Historic Supreme Court Decisions''
{{DEFAULTSORT:Schenck V. United States
United States Free Speech Clause case law
Conscription in the United States
1919 in United States case law
20th-century American trials
Oliver Wendell Holmes Jr.
United States Supreme Court cases of the White Court
United States home front during World War I
United States Supreme Court cases