Schenk v. United States (1919)

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Schenk v. United States is a U.S. Supreme Court decision finding the Espionage Act of 1917 constitutional. The Court ruled that freedom of speech and freedom of the press under the First Amendment could be limited only if the words in the circumstances created "a clear and present danger." Bluebook Citation: Schenk v. United States, 249 U.S. 47 (1919)

Following the United States’ entry into World War I, Congress passed the Espionage Act of 1917 which made it illegal to “make or convey false reports or false statements with intent to interfere” with the U.S. military efforts. Schenk, the defendant, was convicted for violating the Act because he mailed pamphlets to individuals enlisted in the draft that criticized the draft and the U.S. war effort. He appealed his conviction, arguing that the Act violated the First Amendment’s protection of freedom of speech and freedom of the press. 

Justice Holmes, writing for the majority of the Court, ruled that the Act did not violate the First Amendment, thereby affirming Schenk’s conviction. He reasoned that the purpose that Schenk sent the pamphlets was to discourage individuals from avoiding the draft, and this interfered with the United States’ war efforts. Perhaps under calmer circumstances, the Court conceded, the Act would violate the First Amendment. However, the Court placed considerable weight on the circumstances under which speech was restricted—i.e. the United States’ involvement in an international war. The Court balanced an individual’s freedom of speech with whether it created a “clear and present danger.” Here, the Court recognized Congress’s constitutional power to raise and maintain military forces and that the nation was involved in a costly and deadly protracted international conflict. Thus, the Act’s prohibition on actions which hampered the war effort was found constitutional because those actions presented a clear and present danger. 

Subsequent Jurisprudence: 

Shortly after his opinion in Schenk v. United States, Justice Holmes’ dissenting opinion in Abrams v. United States cut against his opinion in Schenk. In Abrams, he disagreed with the Court’s liberal application of the “clear and present danger” standard and argued that a stricter standard should apply to ensure adequate protection of the First Amendment. However, in the decades following Schenk, while First Amendment protections strengthened in Gitlow v. New York and Near v. Minnesota, both of which incorporated the First Amendment, the concept of a balancing test still applied. Brandenburg v. Ohio, a 1969 Supreme Court case, abrogated Schenk and provided for the stricter Brandenburg Test, which only allowed a law to limit speech if it incited imminent unlawful action.

[Last updated in April of 2021 by the Wex Definitions Team]