Schenck v. United States

Explanation and Analysis of the Document

Charles Schenck, secretary-general of the Socialist Party of America, was charged with printing and distributing literature urging American men to resist the draft during World War I. A federal district court found Schenck guilty of having violated the 1917 Espionage Act, which outlawed interference with conscription. Schenck appealed his criminal conviction to the U.S. Supreme Court, questioning the constitutionality of the Espionage Act on First Amendment grounds. There was, he argued, a tradition in Anglo-American law of distinguishing between opinion and incitement to illegal action. His leaflet was a reflection of the debate then raging in American society about the justness of the war and, as such, was an expression of opinion. Rather than violence, it urged that those subject to the draft assert their rights by signing an anticonscription petition that would be forwarded to Congress.

Writing for a unanimous Court, Justice Holmes upheld the constitutionality of the Espionage Act and Schenck's conviction. In considering First Amendment protection for any speech, he states, the Court must consider not only the content of the speech but also its context. Whereas in some circumstances banning speech such as Schenck's leaflet might amount to prohibited prior restraint, in the context of wartime, such speech is akin to shouting “fire” in a crowded theater. In distributing his leaflets Schenck plainly intended to interfere with the draft, and such interference plainly violates the nation's settled right to draft citizens during time of war. Furthermore, the Espionage Act plainly applies to conspiracies as well as to actual obstruction of military activities; the intended action need not have actually succeeded to be prohibited. The test, Holmes memorably declares, is whether the words at issue present a “clear and present danger” of provoking “substantive evils” that Congress is empowered to prevent.

Decided in 1919, Schenck was the Court's first significant attempt to define what constitutes free speech under the First Amendment. Two schools of thought about the subject grew directly out of this case: Absolutists hold that the framers meant, literally, that “Congress shall make no law … abridging the freedom of speech,” while others believe that an individual's right to be left alone must be balanced against compelling public necessity. For his part, Holmes's subsequent refinement of the “clear and present danger” test seems to indicate that his use of the phrase in Schenck had been casual. In two companion unanimous decisions to Schenck, Frohwerk v. United States and Debs v. United States, Holmes used the same traditional “bad tendency” test—judging the legality of speech according to its tendency to provoke illegal acts—that he had employed in earlier free speech cases. It is arguable, then, that in Schenck he intended to equate the “clear and present danger” test with the “bad tendency” test. Within a few months, however, Holmes, together with Justice Louis D. Brandeis, would begin the process of refining the “clear and present danger” test in Abrams v. United States so that it would reflect his intention of providing greater legal latitude for dissident speech.