Schenck v. United States

10 Key excerpts on "Schenck v. United States"

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  Freedom of Expression in the Marketplace of Ideas

  • Douglas M. Fraleigh, Joseph S. Tuman(Authors)
  • 2010(Publication Date)
  • SAGE Publications, Inc

    (Publisher)

  1. What communication by the defendant led to his or her conviction? Charles Schenck, General Secretary of the Socialist Party in the United States, had prepared a leaflet for distribution to men who had been drafted. The leaflet argued that the draft was unconstitutional and encouraged draftees “not to submit to intimidation.” Schenck was convicted for violating the Espionage Act.

  2. What test did the Court use to decide if the defendant’s conviction was constitutional, and what reasoning did the Court use to justify this test? The Court announced the “clear and present danger” test in Schenck. This test allows speech to be punished “when the words 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.” The Court reasoned that free speech rights are not absolute because, after all, freedom of speech would not protect a man who falsely shouted “Fire!” in a theatre and caused a panic.

  3. How did the Court apply the test to the defendant’s communication to decide if the defendant’s free speech rights were violated? The Court held that Schenck’s speech could be punished because Schenck intended to obstruct the recruiting service and because his leaflets “tended” to cause such an obstruction. The Court did not require the government to prove that Schenck actually caused a disruption, reasoning that success (in impeding recruiting for the military) is not required before Schenck’s speech can be punished as a crime.

    More Defeats for Free Speech

  The Court decided two more Espionage Act cases one week after Schenck. These cases did not analyze whether the defendants’ speech created a clear or present danger to the government’s military recruiting efforts. To uphold the defendants’ convictions, using Schenck as a precedent, the Court required only that the communicators’ words tended to cause harm. Thus, the clear and present danger test used by the Court could more accurately be called a “bad tendency” rule.5

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  Eternally Vigilant

  Free Speech in the Modern Era

  • Lee C. Bollinger, Geoffrey R. Stone, Lee C. Bollinger, Geoffrey R. Stone(Authors)
  • 2018(Publication Date)
  • University of Chicago Press

    (Publisher)

  The “clear and present danger” test has come to signify considerable protection for speech and writing, but, prior to Schenck, the Supreme Court had not definitely established that the First Amendment forbids anything other than prior restraints—for example, licensing of who may write a book or make a speech. State courts typically had said that speech with merely a “bad tendency” to cause harm could be punished, thus affording state legislatures wide latitude to punish what they chose. 9 In Supreme Court cases following Schenck, most justices granted legislatures similarly broad scope to punish speech. 10 Since these justices joined the Schenck opinion, they obviously did not assume that it gave much more protection to speech and writing than did the bad tendency test. A second and related explanation of the opinion involves Holmes’s own position, about which there are two distinct views. One is that Holmes himself, right from the start, conceived “clear and present danger” as a standard that would protect speech, but that he cleverly wrote an opinion other justices could join. The second view is that Holmes’s own position developed over time, that when Schenck was decided he had not yet come to the conviction that speech and press should receive stringent protection. Two pieces of evidence support the second view. One is the way Holmes voted in Schenck and its two companion cases. 11 Someone who believed in strong protection of speech probably would not have voted to uphold all three convictions. Although Holmes may possibly have voted against his own convictions in order to write majority opinions that would preserve some protection of speech, justices usually vote according to how they think a case should come out

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  Civil Rights & Liberties in the 21st Century

  • John C Domino(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  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. Aikens v. Wisconsin, 195 U.S. 194 [(1904)]. The most stringent protection of free speech would not protect a man from falsely shouting fire in a theatre and causing panic. It does not even protect a man from an injunction against uttering words that may have all of the effect of force.

  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 substantive evils that Congress has a right to prevent. It is a question of proximity and degree. 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 should regard them as protected by any constitutional right.

  Thus, the clear and present danger doctrine that emerged from Schenck was used by the Court to determine the conditions under which the government may suppress political expression. Schenck is also significant because it provides insights into the Court’s early view of the scope of protection afforded by the First Amendment. Holmes quickly disavowed the notion that the First Amendment is absolute, particularly when speech is closely connected to some illegal act, such as “falsely shouting fire in a theater and causing panic” or advocating the obstruction of a legitimate governmental interest. However, before speech can be restricted, the government must look at the circumstances in which the words are spoken and the nature of the words to be suppressed.

  May the clear and present danger test be invoked even if the government has no proof of dangerous action or conduct?

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  Free Speech and Human Dignity

  • Steven J. Heyman(Author)
  • 2008(Publication Date)
  • Yale University Press

    (Publisher)

  Advocacy of Revolution and Unlawful Action FROM SCHENCK TO BRANDENBURG The Supreme Court’s first major effort to address the problem of subver-sive speech came in response to the wave of prosecutions that were directed against radical opponents of American involvement in the First World War. ∞ In Schenck v. United States (1919), Socialist Party officials had mailed antiwar leaflets to fifteen thousand men who had been drafted for military service. In ‘‘impassioned language,’’ the circulars denounced the war effort as ‘‘a mon-strous wrong against humanity in the interest of Wall Street’s chosen few,’’ ‘‘denied the [government’s] power to send our citizens away to shoot up the people of foreign lands,’’ and argued that conscription violated the principle embodied in the Thirteenth Amendment, which outlawed slavery and invol-untary servitude. The leaflets strongly encouraged opposition to the draft but did not explicitly advocate illegal action. Instead, readers were invited to join the Socialist Party, to contact their congressmen, and to petition for a repeal of the Conscription Act. ≤ In an opinion by Justice Holmes, the Supreme Court affirmed the Socialists’ convictions for conspiracy to violate the Espionage Act of 1917 by attempting to obstruct military recruitment and to cause insubordination in the armed forces. Although Holmes admitted that in ordinary times the defendants would have a First Amendment right to speak as they did, he asserted that ‘‘the character of every act depends upon the circumstances in which it is done.’’ ‘‘The question in every case,’’ he wrote, ‘‘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.’’ ≥ At first glance, the requirement of ‘‘clear and present danger’’ appears to offer strong protection for speech.

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  Exploring Communication Law

  A Socratic Approach

  • Randy Bobbitt(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  2 Because of its potential to be used to limit legitimate criticism of the government, the bad tendency test is no longer applied.

  Clear and Present Danger Test

  As a result of a 1917 law called the Espionage Act (discussed later in this chapter), the Supreme Court developed the clear and present danger test, which established a higher burden of proof for restricting speech. Under this test, political speech must do more than create a bad tendency; it must present a “clear and present danger,” that is, a person’s speech must create a “high likelihood of harm,” such as that which motivates the audience to carry out violent acts. The clear and present danger test was first applied in 1919 and was commonly applied in free speech cases up to and including the 1950s and 1960s, even though it was last successfully used to limit speech in 1951.

  In two 1919 cases set against the backdrop of World War I—Schenck v. United States and Abrams v. United States—the government prosecuted men distributing leaflets opposing American involvement in the war and expressing other anti-establishment sentiments. In both cases, lower courts had convicted the men of violating the Espionage Act and the Supreme Court upheld the convictions. In Schenck, Justice Oliver Wendell Holmes coined the term “clear and present danger” and wrote that “even the most stringent protection of free speech would not protect a man who falsely shouts fire in a crowded theatre.”3 He further argued that criticisms of the government or the military that might be considered harmless during peacetime should not be tolerated during times of war.4

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  The Supreme Court and the Mass Media

  Selected Cases, Summaries, and Analyses

  • Douglas S. Campbell(Author)
  • 1990(Publication Date)
  • Praeger

    (Publisher)

  (525) After laying out the basis for his decision, Frankfurter then attempts to justify it by a long review of what he feels are all the important relevant cases since Schenck (1919). From this review, he draws three conclusions. "Free speech cases," he writes first, "Are not an exception to the principle that we are not legislators, that direct policy-making is not our province. How to best reconcile competing interests is the business of legislatures, and the balance they strike is a judgment not to be displaced by ours, but to be respected unless outside the pale of fair judgment (539, 540). His second point focuses on the basis that the Court should use to make free speech and press decisions. He writes, "A survey of the relevant decisions indicates that the results which we have reached are on the whole those that would ensue from careful weighing of conflicting interests" (542). He then quotes a scholar's criticism of the clear-and-present-danger rule: The truth is that the clear-and-present-danger test is an oversimplified judgment unless it takes account of a number of other factors: the relative seriousness of the danger in comparison with the value of the occasion for the speech or political activity; the availability of more moderate controls than those which the state has imposed; and perhaps the specific intent with which the speech or activity is launched. (542) (From Freund, On Understanding the Supreme Court.) Frankfurter's third point is that "not every type of speech occupies the same position on the scale of values" (544). To illustrate, he draws a distinction "between the statement of an idea which may prompt its hearers to take an unlawful action, and advocacy that such action be taken" (545).

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  Democracy and Distrust

  A Theory of Judicial Review

  • John Hart Ely(Author)
  • 2020(Publication Date)
  • Harvard University Press

    (Publisher)

  But even this cannot be enough. Per-spective is critical, and one whose continued authority depends on the silencing of other voices may well in all good faith be able to con-vince himself that a reason a more objective observer would label inadequate is in fact compelling. So long as the constitutional test is geared to the threat posed by the specific communication in issue, however, courts will tend to be swept along by the same sorts of fears that moved the legislators and the prosecutorial authorities, and the First Amendment is likely to end up a very theoretical barrier. The Supreme Court's first signifi-cant encounter with this amendment came in a series of cases in-volving prosecutions under the Espionage Act of 191 7. Speaking for a unanimous Court, Justice Holmes made clear that his approach was one geared to the specific threat the communication in issue posed. We admit that in many places and in ordinary times the de-fendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act de-pends upon the circumstances in which it is done. This general approach was specified in the famous 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. 6 The clear and present danger test has been the object of considerable liberal nostalgia, and on its sur-face seems at least moderately demanding. 7 The problem is that the defendants in the three cases in which it was introduced all ended up going to prison for quite tame and ineffectual expression.* In fact they went to prison for ten years. It was all quite understand-*Thus the defendant in the landmark, Schenck v.

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  The Supreme Court and American Democracy

  Case Studies on Judicial Review and Public Policy

  • Earl Pollock(Author)
  • 2008(Publication Date)
  • Greenwood

    (Publisher)

  While adhering to Schenck, he did not think that on the facts a case for overriding the First Amendment had been made out: It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not con- cerned. Congress certainly cannot forbid all effort to change the mind of the country. Dennis v. United States, 341 U.S. 494 (1951), distorted the clear and present danger test beyond recognition. In Dennis the prosecution dubbed an agreement to teach the Marxist creed a “conspiracy.” The case was submitted to a jury on a charge that the jury could not convict unless it found that the defendants “intended to over- throw the Government ‘as speedily as circumstances would permit.’ ” This Court sus- tained the convictions under that charge, construing it to mean a determination of “whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” Freedom of Speech 187 I see no place in the regime of the First Amendment for any clear and present danger test, whether strict and tight as some would make it, or freewheeling as the Court in Dennis rephrased it. When one sees when and how the clear and present danger test has been applied, great misgivings are aroused. First, the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial, which was part and par- cel of the cold war that has eroded substantial parts of the First Amendment. Action is often a method of expression and within the protection of the First Amend- ment. One’s beliefs have long been thought to be sanctuaries that government could not invade.

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  Freedom of Speech

  Rights and Liberties under the Law

  • Ken I. Kersch(Author)
  • 2003(Publication Date)
  • ABC-CLIO

    (Publisher)

  Brandeis—to challenge the use of the Bad Tendency test in free speech cases and favored replacing it with the more speechprotective Clear and Present Danger test. In his famously eloquent opinions in the Red Scare cases, Holmes, echoing John Stuart Mill, anchored his case for new protections for the freedom of speech in the role free speech plays in the sciencelike search for truth. These cases in many ways mark the beginning not only of the modern law of free speech but also, more broadly, of the modern law of civil liberties. See Schenck v. United States, 249 U.S. 47 (1919); Abrams v. United States, 250 U.S. 616 (1919); Gitlow v. New York, 268 U.S. 652 (1925). Incitement Test The Incitement test is a twentiethcentury doctrinal test that was advanced by the Court in Brandenburg v. Ohio (395 U.S. 444 [1969]), a case involving a cross burning by the Ku Klux Klan. Under this test, which represents a highwater mark of latitudinarian conceptions of free speech, speech can be restricted only when it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (447). Although the test is broadly worded, in practice it is applied mainly to cases involving radical political speech. It is not considered relevant in cases involving pricefixing, or obscenity, perjury, or a wide variety of other matters. See also Whitney v. California, 274 U.S. 357 (1927). Page 208 Incorporation Incorporation is the legal doctrine holding that the Bill of Rights constitutionally limits the conduct of both the national and the state governments. From the Founding through the end of the nineteenth century, the amendments making up the Bill of Rights (including the First Amendment) were understood to limit only the national government.

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  Forces and Potential for a European Identity

  • Mauro Cappelletti, Monica Seccombe, Joseph H. Weiler, Mauro Cappelletti, Monica Seccombe, Joseph H. Weiler, Mauro Cappelletti, Monica Seccombe, Joseph H. Weiler, Mauro Cappelletti, Monica Seccombe, Joseph H. Weiler(Authors)
  • 2011(Publication Date)
  • De Gruyter

    (Publisher)

  91 4. Clear and Present Danger So far the doctrines we have talked about have been rather specialized ones. The general free speech doctrines employed by the Supreme Court have been first the clear and present danger test and then the balancing test. 92 The danger test is as old as the Court's interest in free speech, dating from the Schenckc&se of 1919. Its history is full of uncertainty and controversy that need not concern us here. It was the Court's general test only in the 1940's and early 1950's. It announced the general rule that speech should be unrestricted coupled with an exception. Speech might be regulated if it constituted a clear and present danger of a substantive evil that the government had a right to prevent. The danger rule did offer a certain margin of discretion to local governments. They could intervene against speakers whose words constituted such activities as incitement to riot or intimidation of courts. Even more leeway was given by the Court's recognition of labor union picketing as speech plus and so subject to more regulation than pure speech, but most of this regulatory authority passed to the National Labor Relations Board rather than to state govern-ments. 93 Of course the Supreme Court exercised the ultimate judgment as to whether a particular speech had in fact created a clear and present danger. And it was not at all embarrassed to substitute its own factual judgment for that of the state courts which had initially heard the matter. 91 Broadrick v. Oklahoma, 413 U.S. 601 (1973). 92 See M. SHAPIRO, FREEDOM OF SPEECH: THE SUPREME COURT AND JUDICIAL REVIEW 46-107 (Englewood Cliffs, N.J., Prentice-Hall, 1966). 93 See M. SHAPIRO, LAW AND POLITICS IN THE SUPREME COURT 77-83 (New York, Free Press, 1964). Protection of Fundamental Human Rights and Integration 267 The danger test survives today in altered and strengthened form in Branden-burg v. Ohio. [T]he constitutional guarantees of free speech ...

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