¶ … Supreme Court vs. The First Amendment: Schenck v. United States, 249 U.S. 47 (1919)

While at war with Germany during World War I, the United States Congress passed the Espionage Act, outlawing any attempt to foster insubordination or obstruct the draft. The Espionage Act, which was passed in 1914, made it illegal to defame the government or do anything that might impede the war effort.

Charles Schenck, a general secretary of the Socialist Party who opposed the war, printed and distributed 15,000 copies of a pamphlet urging citizens to oppose the draft which he likened to slavery. Many of Schenck's pamphlets were mailed to draftees and he was later arrested for conspiring to print and circulate material that would obstruct and hinder the enlistment service of the United States. Schenck argued that the Espionage Act violated his rights to freedom of speech and press.

The case Schenck v. United States questioned whether Schenck's actions were protected by the free speech clause of the First Amendment. The Supreme Court ruled against Schenck saying that the Espionage Act did not violate the first amendment and that in times of war the government may place reasonable limitations on freedom of speech. Justice Oliver Wendell Holmes outlined the courts opinion by explaining that when a "clear and present danger" existed, freedom of speech may be limited. The defendant was found guilty on all counts.

The Pamphlet

The first page of the pamphlet contained the text of Section I of the Thirteenth Amendment to the Constitution, and on the flip side were printed (among others) the following phrases: "Do not submit to intimidation," "Assert your Rights," "your right to assert your opposition to the draft" and "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."

Schenck says in his pamphlet:

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?"

He continues with, "Will you stand idly by and see...

You must do your share to maintain, support, and uphold the rights of the people of this country."
Schenck's pamphlet finishes with, "In this world crisis where do you stand? Are you with the forces of liberty and light or war and darkness?"

The Decision

According to Holmes, the central issue is whether the pamphlet can be protected under the circumstances. He argued that the First Amendment might indeed protect this speech "in ordinary times." But when there is a "clear and present danger" that the speech will cause harm -- coining the now-famous example of falsely shouting fire in a theater and causing a panic -- it can be punished.

He was quoted as saying: "We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.

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."

Holes in the Decision

The hypothetical scenario of "falsely shouting fire in a theatre" is the one most frequently cited when people want to regulate speech, but in the case of Schenck v. United States there are three major problems with citing it, according to the Institute for Advance Technology in the Humanities at the University of Virginia in "The Supreme Court vs. The First Amendment: Schenck v. United States, 249 U.S. 47 (1919)."

1) The judge took an oath to…