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Charles Schenck, as the Secretary of the Socialist Party of
America, was responsible for printing, distributing, and mailing
leaflets to prospective military draftees during World War I,
15,000 leaflets advocated opposition to the draft.
Contents included: "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,"
His rationale was that military conscription constituted
involuntary servitude, prohibited by the Thirteenth Amendment.
For these acts, Schenck was indicted and convicted of violating
the Espionage Act of 1917.
Schenck appealed to the United States Supreme Court, arguing
that the court decision violated his First Amendment rights.
Is defendant's criticism of the draft
protected by the First Amendment?
 Does defendant’s leaflet threaten
recruiting practices of the U.S. armed
forces during a state of war?
 Does defendant’s leaflet violate the
Espionage Act 1917?
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Defendant's criticism of the draft was not
protected by the First Amendment
 Leaflets created a clear and present
danger to the enlistment and recruiting
practices of the U.S. armed forces during
a state of war
 Conviction is upheld
 Principle of ‘free speech unless clear and
present danger’ is established for future
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Justice Oliver Wendell Holmes’s opinion held that Schenck's
criminal conviction was constitutional.
The First Amendment did not protect speech encouraging
insubordination, since, "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."
That is, wartimes permits greater restrictions on free speech
Holmes sets out the "clear and present danger" test:
“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.”
Charles T. Schenck served six months in prison.
Russian revolution, 1917
 Eugene Debs (socialist leader) ran twice
for the Presidency
 The IWW “Wobblies” and labor unrest
 Palmer raids
 German Bund and isolationists
 companion cases of Frohwerk v. United
States and Debs v. United States did not
mention “present danger”.
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Justice OW Holmes dissented in other
convictions, 1920s
Less restrictive "bad tendency" test adopted in
Whitney v. California (1927)
Dennis v. United States, 341 U.S. 494 (1951),
upheld conviction of communist party leader
under the 1951 Smith Act, for (nonviolent)
advocacy to overthrow US government
Narrowed 1957: Yates v. United States
restricted Dennis, ruling that Smith Act did not
prohibit advocacy of forcible overthrow of the
government as an abstract doctrine.
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But later narrowed by Brandenburg v.
Ohio, 395 U.S. 444 (1969) [KKK speech]
› Replaced the "bad tendency" test with the
"imminent lawless action" test
› Ohio's criminal syndicalism statute violated
the First Amendment, via the 14th, because
it broadly prohibited the mere advocacy of
violence.
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Holmes, dissenting in minority in the
1920s, had succeeded in defending free
speech for the long term