US History II
Mr. Grundfest
SCHENCK v UNITED STATES
Read the following information about the Schenck case. Make sure you also have a copy of the
First Amendment to the Constitution handy. For Thursday, underline, highlight or notate anything
in these documents that you don’t understand. In class on Thursday you will act as a Supreme
Court Justice and render a decision about this case.
Facts and Background
When America entered World War I in 1917, Congress passed a law called the Espionage Act.
The law said that during wartime obstructing the draft and trying to make soldiers disloyal or
disobedient were crimes. Almost 2,000 people were accused of violating this law and were put on
trial.
Charles Schenck was the general secretary of the Socialist Party of America. Socialists believed
that the war had been caused by and would benefit only the rich, while causing suffering and
death for the thousands of poor and working-class soldiers who would do the actual fighting in
Europe. Party officials not only opposed the war, they urged American workers to oppose the war
as well.
Schenck participated in many antiwar activities in violation of the Espionage Act, including the
mailing of about 15,000 leaflets urging draftees and soldiers to resist the draft. He was arrested
and charged with “causing and attempting to cause insubordination in the military and naval
forces of the United States” and with disturbing the draft. He was arrested, tried, convicted, and
sentenced to prison for violating the Espionage Act of 1917, and he appealed his case to the
Supreme Court.
The government accused Schenck of violating the Espionage Act. It said that Schenck's
pamphlets were intended to weaken the loyalty of soldiers and to obstruct military recruiting.
Schenck answered by saying that the Espionage Act was unconstitutional. He said that it broke
the First Amendment's promise the "Congress shall make no law…abridging the freedom of
speech." After working its way through the federal courts, the case was judged by the Supreme
Court in 1919.
Arguments
For Schenck: The Espionage Act was unconstitutional. Schenck and the Socialist party were
persecuted for opposing what they felt was an “immoral war.” The 1st Amendment was
specifically included in the Constitution to protect political speech, and to prevent a “tyranny of
the majority.” The 1st Amendment protections would be meaningless if Congress could choose
where and when citizen's rights may be diminished.
For the United States: A nation at war is justified in taking steps to insure the success of its
effort to defend itself. The case involves congressional draft policy, not the 1st Amendment.
Statements critical of the government cannot be tolerated in a crisis. The nation cannot allow an
effort to deprive the armies of necessary soldiers. The actions and words of the Socialist party
were a danger to the nation. The Espionage and Sedition acts, by contrast, were legitimate and
appropriate in a time of war.
Schenck's pamphlet:
Assert Your Rights
The Socialist Party says that any individual or officers of the law intrusted with the administration
of conscription regulations violate the provisions of the United States Constitution, the supreme
law of the land, when they refuse to recognize your right to assert your opposition to the draft.
In exempting clergymen and members of the Society of Friends (popularly called Quakers) from
active military service the examination boards have discriminated against you.
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.
In lending tacit or silent consent to the conscription law, in neglecting to assert your rights, you
are (whether knowingly or not) helping to condone and support a most infamous and insidious
conspiracy to abridge and destroy the sacred and cherished rights of a free people. You are a
citizen: not a subject! You delegate your power to the officers of the law to be used for your good
and welfare, not against you.
They are your servants; not your masters. Their wages come from the expenses of government
which you pay. Will you allow them to unjustly rule you?
No power was delegated to send our citizens away to foreign shores to shoot up the people of
other lands, no matter what may be their internal or international disputes.
To draw this country into the horrors of the present war in Europe, to force the youth of our land
into the shambles and bloody trenches of war crazy nations, would be a crime the magnitude of
which defies description. Words could not express the condemnation such cold-blooded
ruthlessness deserves.
Will you stand idly by and see the Moloch of Militarism reach forth across the sea and fasten its
tentacles upon this continent? Are you willing to submit to the degradation of having the
Constitution of the United States treated as a "mere scrap of paper"?
No specious or plausible pleas about a "war for democracy" can becloud the issue. Democracy
can not be shot into a nation. It must come spontaneously and purely from within.
Democracy must come through liberal education. Upholders of military ideas are unfit teachers.
To advocate the persecution of other peoples through the prosecution of war is an insult to every
good and wholesome American tradition.
You are responsible. You must do your share to maintain, support, and uphold the rights of the
people of this country.
In this world crisis where do you stand? Are you with the forces of liberty and light or war and
darkness?
MR. JUSTICE HOLMES delivered the opinion of the court.
This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act
of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by causing and attempting to cause
insubordination, &c., in the military and naval forces of the United States, and to obstruct the
recruiting and enlistment service of the United States, when the United States was at war with the
German Empire, to-wit, that the defendants willfully conspired to have printed and circulated to
men who had been called and accepted for military service under the Act of May 18, 1917, a
document set forth and alleged to be calculated to cause such insubordination and obstruction.
The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the
document set forth. The second count alleges a conspiracy to commit an offence against the
United States, to-wit, to use the mails for the transmission of matter declared to be nonmailable
by Title XII, § 2 of the Act of June 15, 1917, to-wit, the above mentioned document, with an
averment of the same overt acts. The third count charges an unlawful use of the mails for the
transmission of the same matter and otherwise as above. The defendants were found guilty on all
the counts. They set up the First Amendment to the Constitution forbidding Congress to make
any law abridging the freedom of speech, or of the press, and bringing the case here on that
ground have argued some other points also of which we must dispose.
Title I, Section 3 of the 1917 Espionage Act, as amended in 1918:
Whoever, when the United States is at war, shall willfully make or convey false reports or false
statements with intent to interfere with he operation or success of the military . . . or to promote
the success of its enemies, or shall . . . say or do anything . . . with intent to obstruct the sale by
the United States of bonds or other securities . . . [or] shall willfully obstruct or attempt to
obstruct the recruiting or enlistment service of the United States, and whoever, when the United
States is at war, shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or
abusive language about the form of government of the United States, or the Constitution . . . or
the military or naval forces . . . or the flag of the United States, or the uniform of the Army or
Navy . . . or any language intended to bring the form of government of the United States . . . [or
the Constitution, the military, the flag, or the uniform of the Army or Navy] . . . into contempt,
scorn, contumely, or disrepute, or shall willfully utter, print, write, or publish any language
intended to incite, provoke, or encourage resistance tot he United States, or to promote the cause
of its enemies, or shall willfully display the flag of any foreign enemy, or shall willfully by
utterance, writing, printing, publication, or language spoken, urge, incite, or advocate any
curtailment of production in this country of any thing or things, product or products, necessary or
essential to the prosecution of the war . . . and whoever shall willfully advocate, teach, defend, or
suggest the doing of any of the acts or things in this section enumerated, and whoever shall by
word or act support or favor the cause of any country with which the United States is at war or by
word or act oppose the cause of the United States therein, shall be punished by a fine of not more
than $10,000 or imprisonment for not more than twenty years, or both.
Constitutional Issues
1. Were Schenck's political statements protected by the free speech section of the 1st
Amendment? Or, are there different standards for protected political speech during
peacetime and in war?
2. What is the meaning of the 1st Amendment's statement that “Congress shall make no
law…abridging the freedom of speech”? Does this mean that all types of speech are
protected at all times?
3. Is the Espionage Act constitutional or does it violate the 1st Amendment?
4. Should Schenck remain in prison?
Your Opinion
Write an opinion as if you were a Supreme Court Justice. A successful opinion has a thesis
statement, a summary evaluation of the facts of the case and your opinion of whether Schenck is
guilty or innocent.
US History II
Mr. Grundfest
Use the guided questions below to help you during your deliberations and when writing your
legal opinion on the case.
Discussion Questions
What are the three key facts in the case?
What issues are you weighing against each other? For example, the interests of the government
vs. the free speech protections in the constitution.
What elements of the case will ultimately determine whether you believe that Schenck is innocent
or guilty?
Guided Questions For Your Opinion
Is Schecnk innocent or guilty?
What reasons will you give to support your decision?
What documents will you quotes to support your argument? How will you use those documents
in your opinion?
What legal idea to you want the American people to remember after reading your decision?