During WWI, Schenck distributed leaflets declaring that the draft violated the Thirteenth Amendment. He was convicted of violating the Espionage Act and he appealed on the grounds that the statute violated his freedom of speech guaranteed by the First Amendment.
The freedom of speech protection afforded in the U.S. Constitution’s First Amendment can be restricted if the words spoken or printed represent to society a “clear and present danger.”
During World War I, socialist Charles Schenck 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 by attempting to cause insubordination in the military and to obstruct recruitment. Schenck was convicted of violating this law and appealed on the grounds that the statute violated the First Amendment.
Did Schenck’s conviction under the Espionage Act for criticizing the draft violate his First Amendment right to freedom of speech?
No, Schenck’s conviction under the Espionage Act for criticizing the draft did not violate his First Amendment right to freedom of speech.
The Espionage Act does not violate the First Amendment and is an appropriate exercise of Congress’ wartime authority. Courts owe greater deference to the government during wartime, even when constitutional rights are at stake. Articulating for the first time the “clear and present danger test,” the Court concluded that the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent. Here, the widespread dissemination of leaflets was sufficiently likely to disrupt the conscription process. The dissemination of leaflets is comparable to shouting “Fire!” in a crowded theatre, which is not permitted under the First Amendment.