Schenck v. United States Case Brief

Facts of the case

During World War I, socialists Charles Schenck and Elizabeth Baer distributed leaflets declaring that the draft violated the Thirteenth Amendment prohibition against involuntary servitude. The leaflets urged the public to disobey the draft, but advised only peaceful action. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment. Schenck and Baer were convicted of violating this law and appealed on the grounds that the statute violated the First Amendment.

Why is the case important?

The distribution of leaflets using impassioned language claiming that the draft was a violation of the Thirteenth Amendment of the United States Constitution (Constitution) and encouraging people to “assert your opposition to the draft” was held not to be protected speech.

Question

Whether the words used in the leaflets 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 protect?

ANSWER

Yes. Judgment of the lower court affirmed. In many places and in ordinary times, the Defendants in saying all that was said in the leaflets would have been within their constitutional rights. However, the character of every act depends on the circumstances in which it is done. The question in every case is whether 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 protect. When a nation is at war, many things that might be said in a 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. Therefore, the words used in the leaflets 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 protect.

Discussion. This case gave birth to the “clear and present danger” test.

CONCLUSION

In many places and in ordinary times, the distribution of the leaflets would have been within defendants’ constitutional rights protected by the First Amendment. However, that the character of protected speech depended upon the circumstances in which it was expressed. In the present case, the act of distributing the leaflets was of such a nature as to create a clear and present danger that might bring about the substantive evils that Congress had a right to prevent. Because Congress was within its power to punish activity intended to obstruct the draft, the conviction of defendants did not violate the First Amendment.

  • Advocates: Henry John Nelson for the plaintiffs in error John Lord O’Brian for the defendant in error Henry J. Gibbons for the plaintiffs in error
  • Appellant: Charles Schenck
  • Appellee: United States
  • DECIDED BY:White Court
  • Location: District Court for the Eastern District of Pennsylvania
Citation: 249 US 47 (1919)
Argued: Jan 9 – 10, 1919
Decided: Mar 3, 1919
Schenck v. United States Case Brief