Schenck v. United States

Questions for Further Study

• 1. In Holmes's opinion for the Court, he writes that “we admit that 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.” How might the ruling in Schenck have been different had America not been at war at the time Schenck's literature was distributed? What impacts might that have had on the American judicial system as a result?
• 2. How might the Schenck v. United States case have helped lessen resistance to the rationing programs mandated during World War II?
• 3. How did the ruling in Schenck impact protests in unpopular wars such as Vietnam? What challenges might Holmes's ruling have faced with a war that was inherently unpopular, like Vietnam, versus a war that was substantially more popular, like World War I and World War II?
• 4. How might the “clear and present danger” test be applied to modern social media communications regarding support for groups deemed by the US government to be terrorist organizations? What might be some challenges to this principle in the modern age?