Schenck v. United States (1919)
Monday, December 7, 2009 at 9:42AM Read the opinion here.
Issue. Did a federal law that made it a crime to cause or attempt to cause insubordination in the military violate the First Amendment right to free speech?
Background. During World War I, Congress passed the Espionage Act. The Act made it a crime to cause or to attempt to cause insubordination in the military, or to obstruct in the recruiting and enlisting of individuals in the military. Schenck was charged under the law for printing and circulating to men who had been drafted a document alleged to advocate that these men obstruct military service or commit insubordination.
Scehenck claimed the law and his indictment violated his First Amendment Right to Freedom of Speech. The Supreme Court disagreed and upheld the indictment.
Court's Analysis. The Court found that restraints on freedom of speech involve proximity and degree. Things that are said which may be protected in times of peace are not protected in times of war. The Court holds:
[The] question in every case is whether the words used are used in such circumstances and are of such a nature to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
In this time of war, Congress had a right to prevent insubordination in its military ranks.
Afterword. The "Clear and Present Danger" Test for Freedom of Speech Jurisprudence was rejected by the Supreme Court in subsequent cases, and Schenck is no longer good law.