Schenck vs. United States (1919)

The Schenck court case of 1919 developed out of opposition to U. S. involvement in World War I (1914-1918). Antiwar sentiment in the United States was particularly strong among socialists, German Americans, and religious groups that traditionally supported antiviolence. In response to this outlook, Congress passed the Espionage Act of 1917. This law provided heavy fines and jail terms for interfering with U. S. military operations or for causing or attempting to cause insubordination or disloyalty in the military.

In addition, the act made it illegal to obstruct recruitment efforts of the U. S. armed forces. Among the many Americans convicted of violating the Espionage Act was Charles Schenck, general secretary of the Socialist Party of the United States. In 1917 Schenck sent copies of a letter urging resistance to the military draft to 15,000 men who had been drafted but not yet inducted into the U. S. military. Schenck’s letter claimed that the draft violated the 13th Amendment to the Constitution, which abolished slavery and prohibited involuntary servitude.

Schenck argued that forced enrollment into the military was a form of involuntary servitude and therefore should be prohibited. The letters also claimed that businesses had conspired to lead the United States to war, against the interests of average Americans. Schenck advised readers to assert their individual rights by opposing the draft, but he did not directly promote violence or avoidance of the draft laws. Justice Oliver Wendell Holmes, Jr. , delivered a judgment that established guidelines for evaluating the limits of free speech.

In Schenck’s case, Court had to decide whether the First Amendment protected his words, even though it might have had the power to cause opposition to the draft. The First Amendment states that “Congress shall make no law… abridging the freedom of speech. ” The Court concluded that because Schenck’s speech was intended to create opposition to the draft, he was not protected by the First Amendment. Holmes considered the context of Schenck’s speech as well as its intent.

In his opinion, he created a new legal test: the clear and present danger test; that was designed to identify when certain forms of speech were not protected by the First Amendment. The clear and present danger test effectively established a policy that allowed the government to suppress political speech under certain circumstances. For example, in times of peace Schenck’s words would have been protected by the Constitution. But in times of war, the Court could not regard them as protected by any constitutional right. As a result of this decision Schenck spent six months in prison.