Schenck vs. The United States

     Charles Schenck vs. The United States was a defining moment in the United States' history because of the questions it brought about concerning "Freedom of Speech," powers of the U.S. government, and the effects it would have on future, similar cases.

Oliver Wendell Holmes Jr., the judge in Schenck's case was a very well respected judge due to his years of experience.

     Charles Schenck was a prominent member of the Socialist Party in the United States. He strongly opposed World War I and especially the draft. As a measure to demonstrate his opinion, he produced a series of pamphlets/flyers in opposition to the War. The flyer declared the draft as unconstitutional by asserting it as "involuntary servitude" which was proscribed by the 13th amendment (outlawing slavery). The flyer also labeled the war as being motivated by capitalist greed and urged draftees to petition for the repeal of the draft. Charles Schenck distributed his flyer all among the military and naval forces throughout the U.S. Inevitably the government became aware of Charles Schenck and his flyer, and they had just the tools to prosecute him for his actions. 

Schenck's case had much to do with the precise meanings of the 1st Amendment and the Espionage Act.

     The U.S. government charged Charles Schenck with violating the Espionage Act of 1917. The Espionage act barred all acts of insubordination and interference with military recruitment which was precisely what Charles Schenck had been attempting. Schenck was alleged by the government with conspiring "to cause insubordination...in the military and naval forces of the United States." Schenck primarily countered their argument by claiming that the Espionage Act itself violated the First Amendment's clause that forbids Congress from making any law abridging Freedom of Speech. Schenck certainly had a valid point in my opinion. According to the actual language of the First Amendment, Schenck had every right to express his opinion openly and freely! But Schenck's flyer was harming the military's recruitment and impeding the country's strength in the war effort. Quickly the question arose; Can the government legally bar freedom of speech in circumstances similar to Schenck's? 

The Supreme Court's decision in Schenck's case created new language for future cases concerning Freedom of Speech. 

     The presiding Judge during Schenck's trial was the old and well-respected Justice Oliver Wendell Holmes Jr. Judge Holmes had many years of experience in law and he was the perfect judge for a case as difficult as this one. Justice Holmes wrote for the majority in the unanimous 9-0 vote against Schenck, and his opinion was brief and direct at only two paragraphs in length! The following text from Justice Holmes' dialogue would become a huge influence in court for many years to come:

"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. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater 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 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."

Above is a political cartoon from the same time period when the Espionage Act was passed. 

     The case was decided on March 3rd, 1919. The written decision uses Justice Holmes' language in saying, "The First Amendment is not absolute, and freedom of speech may be restricted when the expression poses a "clear and present danger" to values that Congress is entitled to protect." And so the question had been answered. The government did have a right to limit freedom of speech in wartime as long as it posed a "clear and present danger." I personally agree wholeheartedly with Justice Holmes' opinion. He acknowledged that what Schenck had said was within his constitutional rights, but at the same time he addressed how Schenck's actions posed a threat to the country. Schenck's actions were of his own personal beliefs and I applaud his initiative in standing up for what he believes. But I have a greater belief in maintaining unity in our military and preventing any division from within. If Schenck had been allowed to continue the distribution of his flyer, the cause could have built up enough support to repeal the draft leaving the military significantly weaker. I believe the country needs to maintain its military strength and Schenck was endangering our country's ability to defend itself.

Sources:
PBS - Basic History
Princeton Clear and Present Danger - Information on "Clear and Present Danger" term
EBSCO - AVL Source
Digital History: Espionage Act - Basic History on Espionage Act
OYEZ Case Summary - Case Summary of Schenck Trial
"You Are the Supreme Court Justice" - Book Source with dates
"Illustrated Great Decisions of the Supreme Court" - Photo sources for blog