Schenck v. United States
| Schenck v. United States | |
|---|---|
 | |
| Argued January 9–10, 1919 Decided March 3, 1919 | |
| Full case name | Charles T. Schenck v. United States |
| Citations | 249 U.S. 47 (more) 39 S. Ct. 247; 63 L. Ed. 470; 1919 U.S. LEXIS 2223; 17 Ohio L. Rep. 26; 17 Ohio L. Rep. 149 |
| Case history | |
| Prior | Defendants convicted, E.D. Pa.; motion for new trial denied, 253 F. 212 (E.D. Pa. 1918) |
| Subsequent | None |
| Holding | |
| Defendant's criticism of the draft was not protected by the First Amendment, because it created a clear and present danger to the enlistment and recruiting practices of the U.S. armed forces during a state of war. | |
| Court membership | |
| |
| Case opinion | |
| Majority | Holmes, joined by unanimous |
| Laws applied | |
| U.S. Const. amend. I; 50 U.S.C. § 33 (1917) | |
Overruled by | |
| Brandenburg v. Ohio, 395 U.S. 444 (1969) | |
Schenck v. United States, 249 U.S. 47 (1919), was a United States Supreme Court decision concerning the question of whether the defendant possessed a First Amendment right to free speech against the draft during World War I. Ultimately, the case served as the founding of the "clear and present danger" rule.
The opinion
The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "[w]hen 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." In other words, the court held, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime.
In the opinion's most famous passage, Justice Holmes sets out the "clear and present danger" standard:
- "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."
This case is also the source of the phrase "shouting fire in a crowded theater," a misquotation of Holmes' view that "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic."
As a result of the 9-0 decision, Charles Schenck spent six months in prison.
Follow-up cases
The requirement to establish "clear and present danger" test was later weakened and the less restrictive "bad tendency" test adopted in Whitney v. California (1927). Justices Holmes and Brandeis shied from this test, but concurred with the final result. Some contend that the "clear and present danger" test was originally just a re-phrasing of the "bad tendency" test. After the repression following the Red Scare, and general disillusion with the war, Holmes sought to prop up free speech with the "clear and present danger" test. This view has merit considering Holmes never referred to "clear and present danger" in the companion cases of Frohewerk and Eugene V. Debs.
See also
External links
Works related to Schenck v. United States at Wikisource
- Linked text of Schenck v. United States, 249 U.S. 47 (1919)
- Full text of the decision courtesy of Findlaw.com
- The flyer at issue in Schenck (PDF)
- First Amendment Library entry for Schenck v. United States
