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It has been suggested that Charles Schenck be merged into this article. (Discuss) Proposed since July 2008.

Schenck v. United States
Supreme Court of the United States
Argued January 9–10, 1919 Decided March 3, 1919
Full case name	Charles T. Schenck v. United States
Citations	249 U.S. 47 (more)39 S. Ct. 247; 63 L. Ed. 470; 1919 U.S. LEXIS 2223; 17 Ohio L. Rep. 26; 17 Ohio L. Rep. 149
Case history
Prior	Defendants convicted, E.D. Pa.; motion for new trial denied, 253 F. 212 (E.D. Pa. 1918)
Subsequent	None
Holding
Defendant's criticism of the draft was not protected by the First Amendment, because it created a clear and present danger to the enlistment and recruiting practices of the U.S. armed forces during a state of war.
Court membership
Chief Justice Edward D. White Associate Justices Joseph McKenna · Oliver W. Holmes Jr. William R. Day · Willis Van Devanter Mahlon Pitney · James C. McReynolds Louis Brandeis · John H. Clarke
Case opinion
Majority	Holmes, joined by unanimous
Laws applied
50 U.S.C. § 33
Overruled by
Brandenburg v. Ohio, 395 U.S. 444 (1969)

Schenck v. United States, 249 U.S. 47 (1919), was a United States Supreme Court decision which upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to free speech against the draft during World War I. Charles Schenck was the Secretary of the Socialist party and was responsible for printing, distributing, and mailing 15,000 leaflets to men eligible for the draft that advocated opposition to the draft. These leaflets contained statements such as; "Do not submit to intimidation", "Assert your rights", "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." Ultimately, the case served as the founding of the "clear and present danger" rule.

The Court's decision

The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "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." In other words, the court held, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime.

In the opinion's most famous passage, Justice Holmes sets out the "clear and present danger" test:

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

This case is also the source of the phrase "shouting fire in a crowded theater," paraphrased from Holmes' assertion that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Subsequent developments

As a result of the 9-0 decision, Charles Schenck spent six months in prison. After his sentence was up, Charles Schenck was found dead in his home, authorities assume an overdose of pain reducers.

Subsequent jurisprudence

The requirement to establish "clear and present danger" test was later weakened and the less restrictive "bad tendency" test adopted in Whitney v. California (1927). Justices Holmes and Brandeis shied from this test, but concurred with the final result. Some contend that the "clear and present danger" test was originally just a re-phrasing of the "bad tendency" test. After the repression following the Red Scare, and general disillusion with the war, Holmes sought to prop up free speech with the "clear and present danger" test, a standard intended to clarify and narrow the circumstances in which speech could be restricted. This view has merit considering Holmes never referred to "clear and present danger" in the companion cases of Frohwerk and Eugene V. Debs.

Both of these cases were later narrowed by Brandenburg v. Ohio (1969), which replaced the "bad tendency" test with the "imminent lawless action" test.

See also

• Abrams v. United States, 250 U.S. 616 (1919)
• Whitney v. California, 274 U.S. 357 (1927)
• Dennis v. United States, 341 U.S. 494 (1951)
• Brandenburg v. Ohio, 395 U.S. 444 (1969)

Further reading

• Kessler, Mark (1993). "Legal Discourse and Political Intolerance: The Ideology of Clear and Present Danger". Law & Society Review. 27 (3): 559–598. doi:10.2307/3054105. {{cite journal}}: Cite has empty unknown parameters: |month= and |coauthors= (help)
• Smith, Stephen A. (2003). "Schenck v. United States and Abrams v. United States". In Parker, Richard A. (ed.) (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 20–35. ISBN 081731301X. {{cite book}}: |editor= has generic name (help)

External links

• Works related to Schenck v. United States at Wikisource
• Text of Schenck v. United States, 249 U.S. 47 (1919) is available from: Findlaw LII
• The flyer at issue in Schenck (PDF)
• First Amendment Library entry for Schenck v. United States
• New York Times article on decision (3/4/1919)

• Articles to be merged from July 2008
• United States Supreme Court cases
• United States free speech case law
• United States First Amendment case law
• Conscription in the United States
• 1919 in law