Supreme Court decision
By: Oliver Wendell Holmes Jr.
Date: March 3, 1919
Source: Holmes, Oliver Wendell, Jr. Schenck v. U.S., 249 U.S. 47 (1919). Available online at http://caselaw.lp.findlaw.com/us/249/47.html; website home page: http://caselaw.lp.findlaw.com (accessed January 23, 2003).
About the Author: Oliver Wendell Holmes Jr. (1841–1935) served in the Union army during the Civil War (1861–1865) from 1861 to 1864. He joined the Massachusetts Supreme Court as an associate justice in 1883, rising to chief justice in 1899. In 1902, President Theodore Roosevelt (served 1901–1909) appointed him associate justice of the U.S. Supreme Court, where he served until age ninety-one.
Free speech restrictions were relatively few, especially on the federal level, before World War I (1914– 1918). The first federal restrictions were the Alien and Sedition Acts, enacted in 1798 during a crisis involving France. These acts were usually used by the Federalist government against political opponents, and in response to them, Virginia and Kentucky passed resolutions announcing that states had the right to nullify acts of Congress. These acts expired early in the nineteenth century, but free speech became a federal issue again during the Civil War. During the war, the writ of habeas corpus (which forbids the government from indefinitely imprisoning people) was suspended, and many people lost their liberties. The Supreme Court never specifically addressed the suspension of habeas corpus, but it indirectly supported President Lincoln's authority by allowing him to respond to the emergency of the Civil War. The Court also refused to exercise jurisdiction over military tribunals, but it did hold that neither Congress nor the president had power to empower military commissions to try civilians when the civil courts were open. In the few cases in which it ruled on free speech issues before World War I, the Court generally favored the government's position.
Before the United States entered World War I, dissent over possible U.S. involvement in the war was widespread. In response, Congress passed several laws designed to quell dissent. These included the Draft Act, which made it a crime to oppose the draft, and the Espionage Act, which made it a crime to engage in espionage that interfered with the war effort. Charles T. Schenck was the first person charged with violating the Espionage Act whose case came before the Supreme Court. Schenck had been tried, convicted, and sentenced to six months in prison for circulating a variety of materials opposing military conscription, including a pamphlet labeled Long Live the Constitution of the United States, but he was free on bail pending his appeal.
The Supreme Court upheld Schenck's conviction. In doing so, the Court created a standard by which to judge restrictions on free speech: the "clear and present danger" standard (although since the 1960s the Court has not applied this standard). The decision also generated one of the most quoted statements in court history: "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." After Schenck, the "clear and present danger" standard was applied to uphold five more convictions under the Espionage and Sedition Acts. Two of those decisions were unanimous, but Holmes and Louis Brandeis dissented in three later cases, arguing that the criminalized speech did not create a clear and present danger.
Free speech was expanded in 1925 when the Supreme Court extended the First Amendment to protect some speech against state action. It was not until the 1960s, though, that the Warren Court held that speech could not be banned unless it was aimed to produce "imminent lawless action" and such action was likely to occur.
Primary Source: Schenck v. U.S. [excerpt]
SYNOPSIS: Holmes first establishes that Schenck was responsible for conspiring to mail a Socialist flyer deemed illegal for mailing because of its content. Then, he states that the flyer was indeed mailed illegally and with the intent to cause hysteria. During peacetime, he says, such literature would be legal, but mailing it in wartime is equivalent to "falsely shouting fire in a theatre and causing a panic."
Mr. Justice Holmes delivered the opinion of the Court.
This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, … by causing and attempting to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendant willfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth.… The defendantswere found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also of which we must dispose.
It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the documents. According to the testimony Schenck said he was general secretary of the Socialist party and had charge of the Socialist headquarters from which the documents were sent.… Without going into confirma tory details that were proved, no reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about. As to the defendant Baer there was evidence that she was a member of the Executive Board and that the minutes of its transactions were hers. The argument as to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the seriousness of the real defence.…
The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the conscription act and that a conscript is little better than a convict. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said, "Do not submit to intimidation," but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights." It stated reasons for alleging that any one violated the Constitution when he refused to recognize "your right to assert your opposition to the draft," and went on, "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." It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up, "You must do your share to maintain, support and uphold the rights of the people of this country." Of course the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point.
But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men.… We admit that in manyplaces 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.… The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.… 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. 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. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in section 4 punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.…
It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The words are "obstruct the recruiting or enlistment service," and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not affect the present indictment and would not, even if the former act had been repealed.
Alonso, Karen. Schenck v. United States: Restrictions on Free
Speech. Springfield, N.J.: Enslow, 1999.
Chafee, Zechariah. Free Speech in the United States. Cambridge, Mass.: Harvard University Press, 1946.
Kohn, Stephen M. American Political Prisoners: Prosecutions Under the Espionage and Sedition Acts. Westport, Conn.: Praeger, 1994.
Mauro, Tony. Illustrated Great Decisions of the Supreme Court. Washington, D.C.: CQ Press, 2000.
Peterson, H.C., and Gilbert C. Fite. Opponents of War, 1917–1918. Madison, Wis.: University of Wisconsin Press, 1957.
Supreme Court Historical Society. "History of the Court: The White Court: 1910–1921." Available online at ; website home page: http://www.supremecourthistory.org/index.html (accessed January 23, 2002).
University of Montana School of Journalism. "The Sedition Cases." Available online at: http://www.umt.edu/journalism/student_resources/class_web_s... ; website home page: http://www.umt.edu (accessed January 23, 2003).