You may have heard someone say something controversial or even hateful, and then justify it with, “FREEDOM OF SPEECH!”, meaning that they assume that the First Amendment right to freedom of speech protects all kinds of speech. Although we enjoy broad protections for freedom of expression in America, not all speech is protected. In Schenck v. United States, the Supreme Court had to determine what speech restrictions were justified.
Schenck v United States 1919
Schenck v. United States is a Supreme Court case that was argued and decided in 1919.
The First Amendment protects freedom of speech, but that freedom, like all rights protected by the Constitution, is not absolute. In many instances, the government can place reasonable limitations on someone’s freedom of speech, especially when that freedom interferes with national security. Schenck v. United States (1919) illustrates the conflicts that have arisen over the tension between free speech and public order.
Fig. 1, Supreme Court of the United States, Wikipedia
Background
Just after the United States entered World War I, Congress passed the Espionage Act of 1917, and many Americans were charged and convicted of violating this law. The government was very concerned with Americans who might be foreign assets or were disloyal to the country during a time of war.
Espionage Act of 1917: This act of Congress made it a crime to cause insubordination, disloyalty, mutiny, or refusal of duty in the military.
In 1919, this law was examined when the Supreme Court had to decide whether the speech that the Act prohibited was actually protected by the First Amendment.
Schenck v. United States Summary
Who was Charles Schenck?
Schenck was the secretary for the Philadelphia chapter of the Socialist Party. Along with his fellow party member, Elizabeth Baer, Schenck printed and mailed 15,000 pamphlets to men eligible for the selective service. He urged the men to dodge the draft because it was unconstitutional on the basis that involuntary servitude was a violation of the 13th Amendment.
Selective Service: The draft; service in the military through conscription.
Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party should have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” - 13th Amendment
Schenck was arrested and convicted of violating the Espionage Act in 1917. He asked for a new trial and was denied. His request for an appeal was granted by the Supreme Court. They set out to resolve whether Schenck’s conviction for criticizing selective service violated his free speech rights.
The Constitution
The constitutional provision central to this case is the First Amendment’s Freedom of Speech clause:
Congress shall make no law….abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Arguments for Schenck
- The First Amendment protects individuals from punishment for criticizing the government.
- The First Amendment should allow for the free public discussion of government actions and policy.
- Words and actions are different.
- Schenck exercised his free speech right, and he did not directly call on people to break the law.
Arguments for the United States
- Congress has the power to declare war and in wartime may limit the expression of individuals to make sure the military and government can maintain national security and function.
- Wartime is different from peacetime.
- The safety of the American people comes first, even if it means limiting certain kinds of speech.
Schenck v. United States Ruling
The Court ruled unanimously in favor of the United States. In his opinion, Justice Oliver Wendell Holmes said that speech that “presents a clear and present danger” is not protected speech. They found Schenck's statements calling for draft avoidance to be criminal.
“The question in every case is whether the words 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.”
He went on to use the example that shouting fire in a crowded theater could not be considered constitutionally protected speech because that statement created a clear and present danger."
The Chief Justice of the Supreme Court during the decision was Chief Justice White, and he was joined by Justices McKenna, Day, van Devanter, Pitney, McReynolds, Brandeis, and Clarke.
The court all voted in favor of upholding Schenck’s conviction under the Espionage Act viewing the act in the context of the wartime efforts.
Fig. 2, Oliver Wendell Holmes, Wikipedia
Schenck v. United States Significance
Schenck was an important case because it was the first case decided by the Supreme Court that created a test for determining whether the content of speech was worthy of punishment by the government. For many years, the case’s test allowed for the conviction and punishment of many citizens who violated the Espionage Act. The court has since ruled more in favor of the protection of free speech rights.
Schenck v. United States Impact
The “Clear and Present Danger” test used by the court provided the framework for many later cases. It is only when speech creates danger do restrictions exist. Exactly when speech becomes dangerous has been a source of conflict among legal scholars and the American citizenry.
Several Americans, including Charles Schenck, were jailed for violating the Espionage Act. Interestingly, Holmes later changed his opinion and wrote publicly that Schenck should not have been incarcerated because the clear and present danger test had actually not been met. It was too late for Schenck, and he served his punishment.
Schenck v. United States - Key takeaways
- The constitutional provision central to Schenck v. U.S. is the First Amendment’s Freedom of Speech clause
- Charles Schenck, a Socialist party member, was arrested and convicted of violating the Espionage Act in 1917 after distributing flyers advocating for men to avoid the draft. He asked for a new trial and was denied. His request for an appeal was granted by the Supreme Court. They set out to resolve whether Schenck’s conviction for criticizing selective service violated his free speech rights.
- Schenck was an important case because it was the first case decided by the Supreme Court that created a test for determining whether the content of speech was worthy of punishment by the government.
- The Court ruled unanimously in favor of the United States. In his opinion, Justice Oliver Wendell Holmes said that speech that “presents a clear and present danger” is not protected speech. They found Schenck's statements calling for draft avoidance to be criminal.
- The “Clear and Present Danger” test used by the court provided the framework for many later cases
References
- Fig. 1, Supreme Court of the United States (https://commons.wikimedia.org/wiki/Supreme_Court_of_the_United_States#/media/File:US_Supreme_Court.JPG)Photo by Mr. Kjetil Ree (https://commons.wikimedia.org/wiki/User:Kjetil_r) Licensed by CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0/)
- Fig. 2 Oliver Wendall Holmes (https://en.wikipedia.org/wiki/Oliver_Wendell_Holmes_Jr.#/media/File:Oliver_Wendell_Holmes,_1902.jpg) by Unknown author - Google Books - (1902-10). "The March of Events". The World's Work IV: p. 2587. New York: Doubleday, Page, and Company. 1902 portrait photograph of Oliver Wendell Holmes, In Public Domain.
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