Schenck v. United States

Impact

For the Schenck case, the most immediate impact was felt by those who had spoken their opposition to America's war effort, as the ruling clearly limited the degree to which Americans could protest or resist a war they viewed unfavorably. More important, it empowered America's investigative agencies, such as the Bureau of Investigations (predecessor to the FBI), with a great deal of latitude in the investigation and prosecution of individuals who were suspected Socialists, which also happened to include a large number of eastern European immigrants. These investigations further fueled the growing fear in America that immigrants were attempting to subvert America's democratic government for a more liberal system like that developing in Russia. By 1919, these fears would manifest themselves in raids led by Attorney General A. Mitchell Palmer and would serve as the primary message of the resurging Ku Klux Klan in the 1920s.

The far-reaching impacts of Schenck v. United States lay in its creation of a precedent for defining the parameters of what constituted protected free speech. The Founding Fathers had never specifically outlined the nature of just how far the freedom of speech extended, and up until the twentieth century generally the issue had never been brought to trial unless in an utterance of rebellion or treason. With the establishment of the “clear and present danger” test, however, the Supreme Court established a more tangible understanding as to just how far the protection of speech could go.

In 1968, the Supreme Court reiterated the arguments of Holmes in the case of U.S. v. O'Brien in their finding that the burning of a draft card represented a dangerous protest because it threatened the ability of the United States to raise an army to defend itself. Conversely, the Court decided in Texas v. Johnson (1989) that the burning of an American flag was a protected form of political speech and therefore shielded by the First Amendment. With the evolution of terrorism from a local and regional issue in the late twentieth century to a global struggle at the beginning of the twenty-first century, Schenck once again became the precedent that defined just how far freedom of speech would be protected. In the case Holder v. Humanitarian Law Project (2010), the court ruled that citizens who advocated for designated terror groups were not immune from prosecution, because they represented a clear and viable threat to the safety of the United States. The case also serves as the justification for why an individual who says there is a bomb in a building or a plane can be arrested and charged for making terroristic threats, given the danger that the ensuing panic may cause.