Schenck v. United States

Brief Fact Summary.

Defendants were convicted of a conspiracy to violate the Espionage Act of 1917 by causing and attempting to cause insubordination in the military and naval forces of the United States.

Synopsis of Rule of Law.

Prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose.

Facts.

Defendants were convicted of a conspiracy to violate the Espionage Act of 1917 by causing and attempting to cause insubordination in the military and naval forces of the United States and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire. The defendants were also alleged to willfully conspire to have printed and circulated to men who had been called and accepted for military service under the Act, a document set forth and alleged to be calculated to cause such insubordination and obstruction.

Issue.

Does the Espionage Act of 1917 that convicted the petitioner for criticizing the draft violate the Constitution?

Held.

No, the First Amendment does not protect an individual from stating words 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 prevent. Because the words uttered by the petitioner poses a clear threat, they are not protected.

Discussion.

Whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger is a question of proximity and degree. When a nation is at war many things that might be said in the time of peach 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. Thus, if an actual obstruction of the recruiting service was proved by the government, liability for words that produced that effect might be enforced.