Brief Fact Summary. While engaged in a war against Germany, the United States deployed a contingent of Marines to Russia. Defendants, a group of Russian immigrants, perceived the deployment as an attempt by the United States to suppress the Bolshevik Revolution. In protest, Defendants distributed leaflets by airplane, denouncing the President of the United States, capitalism, and German militarism.
Synopsis of Rule of Law. Speech is not constitutionally protected when the words used under the circumstances present a clear and present danger of bringing about an evil Congress has a right to prevent. Schenck v. United States, 249 U.S. 47 (1919).
Issue. Were the convictions of Defendants for distributing the leaflets during a time of war permissible under the First Amendment?
Held. Yes. The convictions on counts three and four are affirmed.
Justice Clark simply noted that the Defendants’ First Amendment argument is sufficiently discussed and definitely defeated in Schenck v. United States, 249 U.S. 47 (1919) and Frohwerk v. United States, 249 U.S. 204 (1919).
Dissent. Justice Holmes:
As to the first leaflet: Congress certainly cannot forbid all efforts to change the minds of the people of the country. It is only the present danger of immediate evil or an intent to bring about the evil that warrants Congress setting a limit on the expression of opinion where private rights are not concerned. It cannot be seriously believed that a leaflet from an unnamed person, alone, could present any immediate danger, or could hinder the success of the government in war, or have any appreciable tendency to do either.
As to the second leaflet: Justice Holmes did not see how one could infer the intent required in the statute from the words of Defendant. The only object of the second article is to help Russia with whom we are not at war and to stop American intervention in Russia – not to impede the United States in its efforts of war.
Discussion. The Supreme Court of the United States was evidently impressed by the politics of the day when deciding this case. The majority of this case in the casebook is devoted to Justice Holmes’ dissent. His opinion is widely regarded as the point of embarkation for the Supreme Court’s modern free speech jurisprudence.