Schenck v. United States

Brief Fact Summary. The distribution of leaflets using impassioned language claiming that the draft was a violation of the Thirteenth Amendment of the United States Constitution (Constitution) and encouraging people to “assert your opposition to the draft” was held not to be protected speech.

Synopsis of Rule of Law. The character of every act depends on the circumstances in which it is done. The question in every case is whether the words are used 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 protect.

Facts. This case is based on a three count indictment. The first charge was a conspiracy to violate the Espionage Act of 1917. The second alleges a conspiracy to commit an offense against the United States. The third count alleges an unlawful use of the mails for the transmission of unlawful matter. The document in question claims that the draft is a violation of the Thirteenth Amendment of the Constitution and encourages people to “assert your opposition to the draft.” The Defendants, Schenck and other publishers of the leaflets (Defendants), were found guilty on all of the counts.

Issue. Whether the words used in the leaflets are used 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 protect?

Held. Yes. Judgment of the lower court affirmed. In many places and in ordinary times, the Defendants in saying all that was said in the leaflets would have been within their constitutional rights. However, the character of every act depends on the circumstances in which it is done. The question in every case is whether the words are used 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 protect. When a nation is at war, many things that might be said in a time of peace 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. Therefore, the words used in the leaflets are used 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 protect.

Discussion. This case gave birth to the “clear and present danger” test.