Schenck v. United States

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Schenck v. United States
Seal of the United States Supreme Court.svg
Argued January 8–10, 1919
Decided March 3, 1919
Full case nameCharles T. Schenck v. United States, Elizabeth Baer v. United States
Citations249 U.S. 47 (more)
63 L. Ed. 470; 1919 U.S. LEXIS 2223; 17 Ohio L. Rep. 26; 17 Ohio L. Rep. 149
Prior historyDefendants convicted, E.D. Pa.; motion for new trial denied, 253 F. 212 (E.D. Pa. 1918)
Subsequent historyNone
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 service of the U.S. armed forces during a state of war.
Court membership
Case opinions
MajorityHolmes, joined by unanimous
Laws applied
50 U.S.C. § 33
 
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Schenck v. United States
Seal of the United States Supreme Court.svg
Argued January 8–10, 1919
Decided March 3, 1919
Full case nameCharles T. Schenck v. United States, Elizabeth Baer v. United States
Citations249 U.S. 47 (more)
63 L. Ed. 470; 1919 U.S. LEXIS 2223; 17 Ohio L. Rep. 26; 17 Ohio L. Rep. 149
Prior historyDefendants convicted, E.D. Pa.; motion for new trial denied, 253 F. 212 (E.D. Pa. 1918)
Subsequent historyNone
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 service of the U.S. armed forces during a state of war.
Court membership
Case opinions
MajorityHolmes, joined by unanimous
Laws applied
50 U.S.C. § 33

Schenck v. United States, 249 U.S. 47 (1919), is a United States Supreme Court decision concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in a famous opinion by Justice Oliver Wendell Holmes, Jr., concluded that defendants who distributed leaflets to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense. The First Amendment did not alter the well established law in cases where the attempt was made through expressions that would be protected in other circumstances. In this opinion, Holmes said that expressions which in the circumstances were intended to result in a crime, and posed a "clear and present danger" of succeeding, could be punished.

The Court continued to follow this reasoning to uphold a series of convictions arising out of prosecutions during war time, but Holmes began to dissent in the case of Abrams v. United States, insisting that the Court had departed from the standard he had crafted for them, and had begun to allow punishment for ideas. The "clear and present danger" standard remains the test of criminal prosecutions, but the Court has set another line of precedents to govern cases in which the constitutionality of a statute is challenged on its face.

Background of the case[edit]

Schenck v. United States is the first in a line of Supreme Court Cases defining the modern understanding of the First Amendment. Supreme Court Justice Oliver Wendell Holmes, Jr. wrote the often-cited opinion in the case, because of events that were not publicly known at the time. The United States' entry into the First World War had caused deep divisions in society, and was vigorously opposed, especially by those on the radical left and by those who had ties to Ireland or Germany. The Woodrow Wilson Administration launched a broad campaign of criminal enforcement that resulted in thousands of prosecutions. Many of these were for trivial acts of dissent. In the first case arising from this campaign to come to the Court, Baltzer v. United States, the defendants had signed a petition criticizing their governor's administration of the draft, threatening him with defeat at the polls. They were charged with obstructing the recruitment and enlistment service, and convicted. When a majority of the Court voted during their conference to affirm the conviction, Holmes quickly drafted and circulated a strongly worded dissenting opinion:

Real obstructions of the law, giving real aid and comfort to the enemy, I should have been glad to see punished more summarily and severely than they sometimes were. But I think that our intention to put out all our powers in aid of success in war should not hurry us into intolerance of opinions and speech that could not be imagined to do harm, although opposed to our own. It is better for those who have unquestioned and almost unlimited power in their hands to err on the side of freedom.[1]

Rather than proceed in the face of Holmes's biting dissent, Chief Justice Edward Douglass White set the case aside and word of the situation evidently reached the Administration, because the prosecution was abandoned. White then asked Holmes to write opinions for a unanimous Court in the next case, one in which they could agree, Schenck v. United States. Holmes wrote that opinion, and wrote again for a unanimous court upholding convictions in two more cases that spring, Frohwerk v. United States and Debs v. United States, establishing what remains the standard for deciding the constitutionality of criminal convictions based on expressive behavior. Holmes disliked legislative-style formulas, and did not repeat the language of "clear and present danger" in any subsequent opinion, however. The Schenck opinion alone accordingly is often cited as the source of this legal standard, and some scholars have suggested that Holmes changed his mind and offered a different view in his equally famous dissent in Abrams v. United States. The events leading to the assignment of the Schenck opinion to Holmes were discovered when Holmes's biographer Sheldon Novick unearthed the unpublished Baltzer opinion among Holmes's papers at Harvard Law School.[2]


The facts of the Schenck Case were as follows. Charles Schenck and Elizabeth Baer were members of the Executive Committee of the Socialist Party in Philadelphia, of which Schenck was General Secretary. The executive committee authorized, and Schenck oversaw, printing and mailing more than 15,000 leaflets to men slated for conscription during World War I. The leaflets urged men not to submit to the draft, saying "Do not submit to intimidation", "Assert your rights", "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," and urged men not to comply with the draft on the grounds that military conscription constituted involuntary servitude, which is prohibited by the Thirteenth Amendment.[3]

After jury trials Schenck and Baer were convicted of violating Section 3 of the Espionage Act of 1917.[4] Defendants appealed to the United States Supreme Court, arguing that their conviction, and the statute which purported to authorize it, were contrary to the First Amendment. They relied heavily of the text of the First Amendment, and their claim that Espionage Act of 1917 had what today one would call a "chilling effect" on free discussion of the war effort.[5]

The Court's decision[edit]

The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was constitutional. The statute only applied to successful obstructions of the draft, but common-law precedents allowed prosecution for attempts that were dangerously close to success. Attempts made by speech or writing could be punished like other attempted crimes; the First Amendment did not protect speech encouraging men to resist induction, because, "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."[6] In other words, the court held, the circumstances of wartime allow greater restrictions on free speech than would be allowed during peacetime, if only because new and greater dangers are present.

The opinion's most famous and most often quoted passage was this:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] 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.[7]

Subsequent jurisprudence[edit]

In subsequent cases, when it appeared to him that the Court was departing from the precedents established in Schenck and companion cases, Holmes dissented, reiterating his view that expressions of honest opinion were entitled to near absolute protection, but that expressions made with the intent to cause a criminal harm, or that threatened clear and present danger of such harm, could be punished. In Abrams v. United States, he elaborated on the common-law privileges for freedom of speech and of the press, and stated his conviction that freedom of opinion was central to the constitutional scheme. In Whitney v. California (1927), concerning a conviction for seditious speech forbidden by California law, Holmes joined a concurring opinion written by Justice Louis D. Brandeis once again explaining the clear-and-present-danger standard for criminal attempts. The Supreme Court continued to affirm convictions for seditious speech, however, citing Schenck, and as a result the language of "clear and present danger" fell into disfavor among the advocates of free speech and freedom of the press. In Brandenburg v. Ohio (1969), the Court reversed the conviction of a Ku Klux Klan member, prosecuted for giving an inflammatory speech, saying that speech could be prosecuted only when it posed a danger of "imminent lawless action," which is generally understood to reflect Holmes reasoning as more fully explicated in his Abrams dissent, rather than the common law of attempts explained in Schenck. Partly because the standard for protecting expressive behavior under the First Amendment was stated differently in different cases, some scholars have argued that Holmes changed his mind in the summer of 1919, and that after writing three opinions for a unanimous court, he stated different and more liberal views in his Abrams dissent.

See also[edit]

Further reading[edit]

References[edit]

  1. ^ Sheldon Novick, "The Unrevised Holmes and Freedom of Expression," 1991 Supreme Court Review 303, 389 (1992)
  2. ^ Sheldon Novick, "Preface, Honorable Justice at Twenty-five," in Honorable Justice: The Life of Oliver Wendell Holmes (1989, 2013)
  3. ^ Schenck v. United States, 249 U.S. 47, 49-51 (1917)
  4. ^ University of Texas at Austin. "The Espionage Act and The Limitations of the First Amendment". edb.utexas.edu. , which prohibited willful obstruction of the recently-enacted draft.
  5. ^ [1] Brief of Plaintiffs in Error
  6. ^ Holmes, Oliver Wendell. "Schenck v. United States 249 U.S. 47". Opinion. Legal Information Institute. Retrieved 23 February 2012. 
  7. ^ Holmes, Oliver Wendell. "Schenck v. United States 249 U.S. 47". Opinion. Legal Information Institute. Retrieved 23 February 2012. 

External links[edit]