Professional Documents
Culture Documents
United States
The Case
● Socialists Charles Schenck and Elizabeth Baer, during WWI, were handing out leaflets about how the draft violated
the 13th Amendment
○ 13th Amendment: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within the United States, or any place subject to their
jurisdiction"
● The leaflets told people to disobey the draft and resist going into war/into military service, because Schenck believed
that it was wrong to force men to kill other people in other countries and that the draft violated their 13th amendment
right
● Schenck and Baer were arrested and sentenced to 6 months in prison because them handing out the leaflets violated
the Espionage Act
○ The Espionage Act was implemented during World War I
○ It prohibited many forms of speech, including "any disloyal, profane, or abusive language about the form of
government of or the flag of the United States, or the uniform of the Army or Navy"
● They appealed, stating that their freedom of speech, which is protected by the 1st Amendment, was violated when
they were convicted for handing out their leaflets.
● In the appeal, Schenck’s attorney stated that the Espionage Act was unconstitutional because it regulated freedom of
speech which is protected in the first amendment
The Question
- Freedom of speech is protected under 1st amendment but in this majority opinion excerpt it is stated
that freedom of speech is subject to limitation by Congress if it creates a "clear and present danger" of
substantive evils (actions and or speech that goes against the government that the government would
want to regulate such as speech relating to overthrowing the government)
“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”
- This excerpt is a continuation of the above excerpt because it is talking about how freedom of speech is
regulated depending on the time and place in which the speech was used. Because of the
circumstances (the war) in Schenck v. US the act/speech was not protected by the 1st amendment.
Majority Opinion Excerpts
“A conspiracy to circulate among men called and accepted for military service under the Selective Service
Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the intent to effect that
result, and followed by the sending of such circulars, is within the power of Congress to punish, and is
punishable under the Espionage Act, § 4, although unsuccessful”
- The Espionage Act prohibits many forms of speech, including "any disloyal, profane, or abusive
language about our form of government, our flag, or the uniform of the Army or Navy"
- *Uniform is not the outfits they wear it is the overall cooperation of the Army/Navy
- The excerpt can be summarized by saying that Congress has the power, based on the Espionage
Act, to punish Schenck for trying to obstruct the constitutional draft because his leaflets consisted of
speech that was disloyal to the national uniform/cooperation of the army.
Ruling and Reasons for Ruling
- Unanimous ruling for the United States (9-0)
- Under the Espionage Act, Schenck's speech through the leaflets create a clear and present danger to society
and therefore was not protected under freedom of speech and the 1st amendment
- The leaflets were counted as seditious speech which is not protected by the 1st amendment because, with the
leaflets, it was possible that Schenck was trying to overthrow the government by depriving the US of an army.
- A Nation at War
- Congress can make an exception to the protection of free speech because US was in a state of war
- Congress has to think about the greater good of the country, and at this time it was fighting in a war with an
army. They couldn't fight in this war if Schenck continued to hand out leaflets persuading people to disobey
the draft.
- It was also said that when a nation is in a time of war, statements criticizing the US government can not be
tolerated and therefore not protected as free speech
- Clear and Present Danger Test
- When words are used and they create a clear and present danger to society, they can be regulated by
Congress
- The leaflets could cause harm to the nation because the nation needs an army but if people were
following the leaflets US would have no army
Sources https://www.khanacademy.org/humanities/ap-us-government-and-
https://www.oyez.org/cases/1900-1940/249us47 politics/civil-liberties-and-civil-rights/first-amendment-
speech/a/schenck-v-united-states-1919
https://supreme.justia.com/cases/federal/us/249/47/#tab-opinion-
1928047 http://landmarkcases.c-span.org/Case/23/Brandenburg-v-Ohio
https://www.britannica.com/event/Schenck-v-United-States https://mtsu.edu/first-amendment/article/248/patterson-v-colorado
https://constitutioncenter.org/blog/schenck-v-united-states-defining- https://www.oyez.org/cases/1968/492
the-limits-of-free-speech/
https://www.infoplease.com/history-and- https://definitions.uslegal.com/c/criminal-syndicalism/
government/cases/schenck-v-united-states-1919
https://mtsu.edu/first-amendment/article/248/patterson-v-colorado https://www.change.org/p/clarify-the-imminent-lawless-action-test
https://dictionary.law.com/Default.aspx?selected=325
http://landmarkcases.c-span.org/Case/23/Brandenburg-v-Ohio
https://www.revolvy.com/page/Patterson-v.-Colorado
https://supreme.justia.com/cases/federal/us/205/454/
https://www.law.cornell.edu/wex/clear_and_present_danger