Schenck v. United States
249 U.S. 47 (1919)

  • During World War I, Congress passed the Espionage Act of 1917, which basically made it a crime to make statements that would interfere with ‘military success’ or obstruct ‘recruiting and enlistment’ into the military, when the US was at war.
  • Schenck (a Socialist!) printed a document encouraging people to become draft-dodgers and to press for a repeal of the draft. He was arrested and charged with violating the Espionage Act.
  • The Trial Court found Schenck guilty and sentenced him to six months in prison. He appealed.
    • Schenck argued that the Espionage Act was unconstitutional because it interfered with his 1st Amendment guarantee of freedom of speech.
  • The US Supreme Court upheld the conviction.
    • The US Supreme Court agreed that Schenck’s document would be protected by free speech in general.
    • However, the Court found that because there was a war going on, and because Schenck’s document could create a ‘clear and present danger’, Congress was within their power to prevent Schenck from expressing his beliefs.
      • The Court likened Schenck’s actions to “shouting ‘fire’ in a crowded theater.”
  • This case defined the clear and present danger exception to freedom of speech, which says that a law is constitutional if it can be shown that the language it prohibits poses a “clear and present danger.”
    • Clear and present danger” was later limited by Brandenburg v. Ohio (395 U.S. 444 (1969)), to situations where speech would provoke an “imminent lawless action.”
  • This was one of the first cases in which the US Supreme Court dealt with the 1st Amendment. Until this point, there was not a lot of litigation on the subject.
    • This was the first case that suggested that the 1st Amendment goes beyond prior restraint and in fact extends to subsequent punishment.
      • A prior restraint is something that prevents speech from occurring, like forcing someone to get a license before printing a paper.
      • Alternately, there are laws that punish speech after it has occurred, like penalties for libel or slander. (aka subsequent punishment)
      • The difference is that if there is an injunction, you can still be punished for violating the injunction, even if it is later determined that the speech was protected by the 1st Amendment.
      • Aka the Collateral Bar Rule.