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Schenck v. United States (1919)

Updated May 2, 2016

Transcript

Court Decision

Do you agree with the Court's decision? Why?

I do agree with the court's decision because if free speech can put someone in immediate danger then it should be somewhat restricted. I believe that Schneck is right that it does take a little away from our first amendment right, but if this puts others in danger then it should be controlled to a degree.

This case was a unanimous vote which does not happen often.
The lower court ruled that the Espionage Act is not a violation of the first amendment since it was created in a time of war. They claimed that free speech depends on the situation such as Schenck acting out against U.S. military during a world war. The Supreme Court upheld this decision.

This court case created the “clear and present danger” test which states that there are limits on free speech. This limit being that if what is said creates any danger or threat based on the situation, then it can not be said. However, this test in the courts only last about 50 years until it was modified after the Brandenburg v. Ohio case into the “imminent lawless action” test. This test is based off of the “clear and present danger” test, but it basically made it less strict.

My Thoughts Continued...

How could things be different if the Court decided the other way in the case?

Justice Oliver Wendell Holmes criticism was that in other times what Schneck did would have been fine and harmless, but since it was during a time of war it is a danger and that he broke the law. Therefore he believes that the Espionage Act is not a violation of the first amendment like Schenck claims it is because there is a limit to what should be said depending on the situation.
There are warnings in the dissent that Schenck claims that dissent in wartime is a violation of the first amendment.

The conflict was that a man named Charles Schenck began to pass out flyers to the soldiers who were drafted during WW1 which claimed that the draft was a horrible idea that represented capitalism. He also stated that it went against the 13th amendment since to him it is considered slavery to force them to fight, so he tried to get them revolt and get rid of the draft. The government then claimed that this was an action that violated the Espionage Act which makes sure citizens don’t interfere with the military.

If the Court decided the other way I believe that people would have an even broader range of free speech. Without the “clear and present danger” test it would allow people to say whatever they want whenever they want, which could lead someone into danger.

Background Info Continued

The case was held in many different federal courts before it finally made its way to the Supreme Court in 1919. Basically it worked its way to the top due to it being such an important, controversial issue.
The case was a federal case.

What are the Constitutional Issues of this case?

Majority Opinion

Schenck first claimed that the draft was against their 13th amendment right since he believes the draft is similar to slavery. Schenck also claimed that it was unconstitutional to have the Espionage Act. Since this prohibits anyone from speaking bad about the military, Schenck claimed that this violates the first amendment right to free speech.

Constitutional Issues Continued

The ruling of the Court was that he was guilty. They claimed that there should be a “balancing test” or sometimes known as the “clear and present danger test” which is basically a test that courts use to determine what constitutes as free speech. So saying something that provokes danger or a threat is not protected under the first amendment and can be punishable.
The court found Schneck guilty for violating the Espionage Act, and based their decision on the fact that he broke this law and that it is not a violation of his first amendment right.

What is the Court being asked to do?

More Constitutional Issues...

What Constitutional grounds does each side argue?

The Court is trying to decide basically what constitutes as free speech that is protected under the first amendment. They are also trying to decide if Schenck should be punished for violating the Espionage Act even though he claims it violates his first amendment right. Overall they are trying to decide if he is protected by his first amendment right, and when does “free speech” become a danger to society to the point of punishment.

In the Supreme Court, Justice Oliver Wendell Holmes argued that Schenck’s first amendment right was not violated. He claimed that depending on the situation, free speech can become a danger. The example the Court used was that shouting “Fire” in a theatre is a dangerous act to do. Therefore Schneck making anti draft posters during time of war creates a threat and is a danger so it should not be protected. On the other hand Schenck believes that the Espionage Act restricts the right to free speech.