Schenck v. United States
Schenck v. United States is a landmark Supreme Court case from 1919 that addressed the limits of free speech under the First Amendment, particularly during wartime. Charles T. Schenck was convicted for violating the Espionage Act by distributing leaflets that discouraged military enlistment. Schenck argued that his conviction infringed upon his rights to free expression, leading the case to examine the constitutionality of the Espionage Act. The Supreme Court, led by Justice Oliver Wendell Holmes Jr., upheld the conviction, introducing the "clear and present danger" test as a criterion for determining when speech could be restricted. This decision suggested that speech posing a significant threat to national security could be curtailed. Although the test was initially accepted, its vagueness raised concerns about its application and potential misuse, leading to discussions around the balance between free speech and national security. The ruling highlighted the complexities of protecting civil liberties in times of crisis, a theme that continues to resonate in contemporary discussions about freedom of expression.
Schenck v. United States
Date: March 3, 1919
Citation: 249 U.S. 47
Issue: Freedom of speech
Significance: In upholding the conviction of a man for discouraging people from enlisting in the service, the Supreme Court first used the clear and present danger test to determine whether speech could be restricted.
Charles T. Schenck was convicted of violating the 1917 Espionage Act by discouraging enlistments in the armed forces, something that would not have resulted in a prosecution later. Because the key activity was the distribution of leaflets, Schenck protested that his conviction violated his freedom of expression rights under the First Amendment, and he attacked the constitutionality of the Espionage Act. The Supreme Court unanimously upheld his conviction. In the opinion for the Court, Justice Oliver Wendell Holmes said the leaflet posed a “clear and present danger” to the United States during wartime. It was the first use of this doctrine as grounds on which the government could restrain speech.
Many scholars find it difficult to see how the Schenck leaflet constituted a clear and present danger to anyone. Nonetheless, the clear and present danger test was widely accepted. The test was sometimes abused by justices who said they were following the clear and present danger test when they were really departing from it, using a looser, much more restrictive bad tendency test against speech. The phrase’s key limitation is its vagueness, which can be interpreted to be quite intrusive on the free exercise of speech. What is clear to one person may be unclear to another, and what can be a present danger to one can seem quite remote to another. In his opinion, Holmes did state that Schenck’s activities in other times and places would have been protected and did clarify the meaning of his test in Abrams v. United States (1919) and dissent vigorously when others abused the test in later decisions.
Bibliography
Dudley Gold, Susan. Clear and Present Danger: Schenck v. United States. Cavendish Square, 2013. Digital file.
Healy, Thomas. "The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., and the Story behind Abrams v. United States." Journal Of Supreme Court History 39.1 (2014): 35–78. PDF file.
Lewis, Anthony. Freedom for the Thought That We Hate: A Biography of the First Amendment. New York: Basic, 2009. Print.
"Schenck v. United States." Oyez. Chicago-Kent College of Law at Illinois Tech, n.d. Web. 11 Jan. 2016.
Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: Norton, 2004. Print.