Centennial Series: Schenck V US

2019 marks the centennial of the Hamilton County Courthouse and I thought I would take a look at landmark cases, legislation and general events of the world from 100 years ago as a reflection on where we were then and where we are now.


The first case I want to examine is one most people know, though not necessarily by name. Lay-persons know it by one sentence which has become a catch-phrase in the definition of free speech in this country: “you can’t yell fire in a crowded theater”. Attorneys and scholars know it as the case which established the “clear and present danger” test when discussing limitations on the 1st Amendment.

The case is Schenck v. US, 39 S.Ct. 247. It was argued before the Supreme Court of the United States from January 9-10, 1919 and decided on March 3, 1919. The unanimous decision was delivered by Associate Justice Oliver Wendell Holmes.

The facts of the case can be summed up as follows.

On April 6, 1917, the United States entered World War I. Two months later, on June 15, 1917, Congress passed the Espionage Act of 1917 to prevent interference with military operations and inhibit the support of enemies of the United States during wartime. Section 3 of the Act reads:

“…whoever when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.”

Charles Schenck and Elizabeth Baer were members of the Socialist Party in Philadelphia. Schenck was the secretary for the Executive Committee of the Party and was convicted in a jury trial of violating the Espionage Act by organizing, printing and distributing 15,000 leaflets to men who had been conscripted into the Armed Services. In his opinion, Justice Holmes quoted the leaflets as saying:

“It stated reasons for alleging that any one violated the Constitution when he refused to recognize ‘your right to assert your opposition to the draft,’ and went on, ‘If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.’ It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up, ‘You must do your share to maintain, support and uphold the rights of the people of this country.’”


Perhaps the most well-known line of this opinion quickly follows. Justice Holmes states:

“We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done… The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force… The question in every case is whether the words used 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 prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in 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.” [emphasis added]

The clear and present danger test established that speech can have different protections under different circumstances. The Constitution Center has this to say:

[T]he “clear and present danger” standard would last for another 50 years. In Brandenburg v. Ohio, a 1969 case dealing with free speech, the Court finally replaced it with the “imminent lawless action” test. This new test stated that the state could only limit speech that incites imminent unlawful action. This standard is still applied by the Court today to free speech cases involving the advocacy of violence.