Schenck v. United States

When the United States entered World War I in 1917, the Wilson administration sponsored the Espionage and Sedition Acts, which outlawed criticism of the government, the armed forces, and the war effort. The government imprisoned or fined violators and even censored or banned mainstream publications. Schenck and Baer, of the Socialist Party in Philadelphia, distributed leaflets declaring that the draft violated the Thirteenth Amendment’s ban on involuntary servitude and urging the public to oppose it — though by peaceful means.

Did Schenck’s conviction under the Espionage Act for distributing leaflets opposing the draft violate his First Amendment right to freedom of speech?

No. The Court unanimously held that the Espionage Act, as applied, did not violate the First Amendment and was an appropriate exercise of Congress’s wartime authority.

Justice Holmes reasoned that the character of every act depends on the circumstances, and that courts owe greater deference to the government in wartime. Articulating the “clear and present danger” test for the first time, he concluded that the First Amendment does not protect speech that creates a clear and present danger of bringing about substantive evils that Congress has the power to prevent. The widespread distribution of the leaflets, he reasoned, was sufficiently likely to obstruct recruitment. Free speech, he wrote, would not protect a man falsely shouting fire in a theater and causing a panic.

Schenck upheld the government’s wartime prosecutions of dissenters, including socialists and pacifists. Within months, in Abrams v. United States (1919), Holmes himself dissented from another conviction, beginning to reinterpret the test as more protective of speech.

The “clear and present danger” test shaped free-speech law for half a century. In Brandenburg v. Ohio (1969), the Court adopted a more protective standard: speech can be punished only if it is “directed at inciting or producing imminent lawless action” and is likely to produce it. Holmes’s “shouting fire in a crowded theater” line is still widely quoted, often as if it stated current law, though the decision that coined it has been superseded.