Wednesday, May 6, 2009

Schenck v. US (1919)

1)Schenck v. United States, 249 U.S. 47 (1919) Decided by the White Court

2)Historical Background: Before we get into the specifics of the case, we must
understand the background history and culture of the time period in which it took place. At the time, the United States was involved in World War I and many American dissenters actively protested this involvement. In order to weaken or even abolish this anti-war movement, Congress passed various laws threatening free speech (often during wartime free speech rights are vulnerable to restraint). These laws included the Espionage Act of 1917 and the Sedition Act of 1918, which “prohibited saying or publishing anything disrespectful to the government of the United States.” Socialists, Communists, and Anarchists took the brunt of these laws. For example, Eugene V. Debs, leader of the Socialist Party, was sentenced to ten years in prison for saying ‘“master classes” caused the war, the “subject classes” would have to fight it.”

Facts: The defendant, Charles Schenck was the general secretary of the Socialist Party. He violated the Espionage Act of 1917 by mailing 15,000 leaflets insisting draftees and soldiers to resist the draft. He was arrested for this act of anti-war protest, being charged with “causing and attempting to cause insubordination in the military and naval forces of the United States” as well as disrupting the draft. Next, he was tried, convicted, and sentenced to prison. So, he went to the last resort, the Supreme Court. The government would argue that Schenck is guilty for breaking the law, but Schenck’s argument was that his and his entire party’s First Amendment rights were stripped away and that the war was an immoral war being fought by the working class, but for the upper class.
3)Issue: Were Schenck’s statements in the leaflets protected by the First Amendment? According to the First Amendment, “Congress shall make no law…abridging the freedom of speech” if this is true then was the Espionage Act and similar laws unconstitutional? Should Schenck stay behind bars?

4) Decision: The Supreme Court, in a 9-0 decision, upheld Schenck’s conviction. Were Schenck’s statements protected as political speech? No. Was the Espionage Act and similar laws unconstitutional? No. Should Schenck stay behind bars? Yes. All in the eyes of the Supreme Court!

5) Reason: According to the Supreme Court, Schenck’s statements put people in danger. This case created the famous, “clear and present danger” rule. Justice Oliver Wendell Holmes claimed, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic. The question in every case is whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” So, was the Espionage Act constitutional? The Supreme Court argued that the law was reasonable in wartime and that such “political speech” was not protected, especially if it caused harm to others.

My opinion: I wholeheartedly disagree with every decision the Supreme Court made in this case and I feel we have come incredibly far (in terms of free speech rights), even in our modern, Patriot Act driven times. If the Supreme Court were faced with this case today they would absolutely overrule Schenck’s conviction. At least I hope so! Following this case, various Supreme Court decisions ruled in favor of similar incendiary speech, contradicting this decision. Firstly, the leaflets did not contain any statements making threats to draftees or soldiers if they did not conform to Schenck’s pleas. He merely urged men to resist the draft. Secondly, I think the Espionage Act was a “clear and present danger” in itself! The law was unconstitutional because it severed Americans’ right to free speech and specifically persecuted dissident voices, like the Socialist Party. Finally, I think all charges against Schenck and any other First Wave of the Red Scare victims should have been dropped, if they were clearly unconstitutional, as in this case. This event in our history is highly significant because it demonstrates how easily our civil liberties can be removed; a theme unfortunately not foreign to us in modern times.

I used and http:/ and my conscience.


  1. Would they REALLY rule in Schenk's favor today?Thursday, May 7, 2009 at 3:08:00 PM EDT

    Come on, secretary general of the socialist party AND telling people not to join the army? Of course nowadays the socialist party's activities are just ignored by the government and mainstream media, but if for some reason Schenk's case went all the way to the Supreme Court, I doubt they'd sympathize.

  2. Yeah, you're completely right sadly. I suppose my cynicism went away that day. I guess what I meant is that we've come a long way since then (not to say we won't go back or are going back) and today Schenck would have far more support for his case.


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