Schenck v.

United States
The Case
● Socialists Charles Schenck and Elizabeth Baer, during WWI, were handing out leaflets about how the draft violated
the 13th Amendment
○ 13th Amendment: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within the United States, or any place subject to their
jurisdiction"
● The leaflets told people to disobey the draft and resist going into war/into military service, because Schenck believed
that it was wrong to force men to kill other people in other countries and that the draft violated their 13th amendment
right
● Schenck and Baer were arrested and sentenced to 6 months in prison because them handing out the leaflets violated
the Espionage Act
○ The Espionage Act was implemented during World War I
○ It prohibited many forms of speech, including "any disloyal, profane, or abusive language about the form of
government of or the flag of the United States, or the uniform of the Army or Navy"
● They appealed, stating that their freedom of speech, which is protected by the 1st Amendment, was violated when
they were convicted for handing out their leaflets.
● In the appeal, Schenck’s attorney stated that the Espionage Act was unconstitutional because it regulated freedom of
speech which is protected in the first amendment
The Question

Did Schenck's conviction under the Espionage

Act violate his First Amendment right to freedom
of speech?
Description of Provision - Freedom of Speech
● Free Expression
○ The first amendment guarantees each person a right of free expression in spoken word,
written word and by all other means of communication
○ The first amendment also guarantees all people a wide ranging discussion of public
affairs
● Obscenity
○ A classification of speech
○ Not protected by the first amendment
○ Speech that relates to immoral or offensive matters
○ Hard to regulate
○ Ex. Sexual harassment
● Symbolic speech
○ People communicating ideas through conduct/action
○ Ex. Black armbands (Tinker v. Des Moines)
○ Ex. Flag burning (Texas v. Johnson)
Description of Provision - Freedom of Speech
○ Commercial Speech
■ Relates to business purposes (mainly advertising)
■ Government can prohibit false/misleading advertising of illegal goods or services
■ Not all commercial speech is protected by the first amendment
■ Ex. Congress banned cigarette ads on radio and tv
○ Seditious Speech
■ Sedition
■ the crime of attempting to overthrow the government by force
■ Or
■ The disruption of lawful activities with violent acts
■ Seditious speech: The advocating or urging of sedition
■ It's not protected by the first amendment
Precedent Case(s)
● Patterson v. Colorado
○ Thomas M. Patterson a newspaper publisher, former U.S. Senator and owner of Denver Times and Rocky Mountain
News, was brought to the court for citation of contempt
○ Contempt: (2 types)
■ a) being rude to a judge or attorney or causing a disturbance in the courtroom
■ b) willful failure to obey the court // ex: not paying child support after being ordered by the court to do so
○ Patterson was cited for contempt because he published articles and cartoons criticizing the judges and their decisions in a
pending case in the Colorado Supreme Court
○ He said/argued that he published the works but they weren't meant to be disrespectful and they were not published when
the case was still trying to decide on a verdict
○ 7-2 ruling in favor of Colorado
■ Patterson was cited for contempt because he criticized judges for their decisions and stances in a case that had not
yet decided a verdict. This criticism, from the articles Patterson published, interfered with the public good
because of the criticism of the judges. Since the case was still going on, criticisms of the judges might obstruct
the ruling and public opinion for the case.
Precedent Case(s)
- Brandenburg v. Ohio
- Brandenburg, a leader of the Ku Klux Klan, made a speech at a rally targeting the government and African Americans
- Ohio convicted Brandenburg because he was violating the Criminal Syndicalism Law
- The Criminal Syndicalism Law makes advocating for "crime, sabotage, violence, and other unlawful methods of terrorism"
illegal. Brandenburg was advocating for these illegal things in his speech at the rally.
- He was sentenced to prison but appealed and claimed that his first amendment right to free speech was violated because of the
Criminal Syndicalism Law. He argued that this law unjustly regulates his freedom of speech.
- At the end of the appeal the court was making their decision based on the Imminent Lawless Action test
- The Imminent Lawless Action test regulates speech if a) the speech provokes imminent lawless acts (that are going to result in
danger) or if b) the speech is likely to produce said illegal action
- Court decided that Ohio did violate Brandenburg’s right to freedom of speech
- In their decision, they stated that
- Again, the Criminal Syndicalism Law made it illegal to teach and advocate for beliefs relating to illegal actions (such as what
the Ku Klux Klan does)
- However, the same law (Criminal Syndicalism Law) failed to specify which parts of Brandenburg's speech actually invite
Imminent Lawless Action
- The court’s failure to specify whether or not Brandenburg's speech invoked Imminent Lawless Action made the Criminal
Syndicalism Law, in this case, too broad, therefore violating the constitution and Brandenburg’s freedom of speech
How do they relate?
- The precedent cases link to Schenck v. United States because they both relate to freedom of speech and at what times freedom of speech can
be regulated.
- In both precedent cases, Patterson and Brandenburg both claimed their freedom of speech had been violated
- During the cases, Congress uses laws or tests to regulate speech. Ultimately, this protects our freedom of speech; because, the tests regulate
harmful speech that would result in harm and danger to society.
- Patterson v. Colorado
- Citation of Contempt regulates freedom of speech
- Patterson was disrupting a court case, by bashing the judges and previous decisions of the court, with his newspaper articles
and cartoons. Just like in Schenck v United States, Patterson's speech was regulated because it created a clear and present
danger at the time.
- Brandenburg v. Ohio
- Imminent Lawless Action test regulates freedom of speech
- Brandenburg's speech was regulated because it also created a clear and present danger by invoking imminent lawless action
upon African Americans and the government.
- Schenck v. United States
- Espionage Act + Clear and Present Danger Test regulates freedom of speech
Arguments for Schenck
- Espionage Act was unconstitutional
- It prohibits forms of speech that's related to the war
- Speech is supposed to be protected by the first amendment so regulating with the Espionage Act is unconstitutional
- United States violated Schenck’s First Amendment right because they arrested/convicted him for expressing his opinion about the draft
through his leaflets

- First Amendment protects political speech

- Schenck argued that his leaflets were apart of political speech. Political speech is a very broad category that the draft can fit under,
so political speech is protected under the first amendment
- First Amendment rights would have no significance if Congress could pick and choose when rights can be changed
- Rights should be protected. If they are not, one day something will be constitutional but unconstitutional the next. This would result
in chaos.
- The court ruled that Schenck's usage of free speech, through the leaflets, is unconstitutional, but with this ruling they are saying that
Schenck may have had the right of free speech at one place and time, but now they are ruling that is unconstitutional under this new
"clear and present danger test" that they just came up with.
- This argument relates to the other cases because everytime Congress wants to regulate free speech, they come up with a new law or
act to regulate it
Arguments for United States
- The Espionage Act did not violate Schenck’s freedom of speech because the Espionage Act is legitimate during a state of war
- The Supreme Court said if someone tries to obstruct the draft, Congress has the power to punish them under the Espionage Act
- Schenck's leaflets, telling people to disobey the draft, would deprive the US army of soldiers necessary to fight the war
- Schenck's leaflets violate the the clear and present danger test because his leaflets provoked the lawless action of disobeying the
draft. The leaflets might cause people to actually disobey the draft, leaving the military weak and powerless due to their lack of
soldiers.
- Schenck using Seditious Speech
- Sedition: the crime of attempting to overthrow the government by force or to disrupt its lawful activities with violent acts
- Seditious speech: The advocating or urging of sedition (it's not protected by the first amendment)
- Although, Schenck didn't ensue direct violence with his leaflets, they were still classified as seditious speech because the message
was forceful in urging people to disobey the government and the draft.
- US also argued that Schenck’s intention, with the leaflets, was to get rid of the draft (which is stated in the constitution and protected by the
constitution)
- This next argument isn't necessarily an argument but it's a valid worry for America that could possibly persuade the court to vote against
Schenck. This worry would be that:
- Socialists are a danger to the US's capitalist government
- Schenck was a socialist and if people in US were listening to him and disobeying the draft, the government feared that the US's
capitalist government would begin to lessen.
Majority Opinion Excerpts
“Words which, ordinarily and in many places, would be within the freedom of speech protected by the First
Amendment may become subject to prohibition when of such a nature and used in such circumstances as to
create a clear and present danger that they will bring about the substantive evils which Congress has a right
to prevent.”

- Freedom of speech is protected under 1st amendment but in this majority opinion excerpt it is stated
that freedom of speech is subject to limitation by Congress if it creates a "clear and present danger" of
substantive evils (actions and or speech that goes against the government that the government would
want to regulate such as speech relating to overthrowing the government)

“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”

- This excerpt is a continuation of the above excerpt because it is talking about how freedom of speech is
regulated depending on the time and place in which the speech was used. Because of the
circumstances (the war) in Schenck v. US the act/speech was not protected by the 1st amendment.
Majority Opinion Excerpts
“A conspiracy to circulate among men called and accepted for military service under the Selective Service
Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the intent to effect that
result, and followed by the sending of such circulars, is within the power of Congress to punish, and is
punishable under the Espionage Act, § 4, although unsuccessful”

- The Espionage Act prohibits many forms of speech, including "any disloyal, profane, or abusive
language about our form of government, our flag, or the uniform of the Army or Navy"
- *Uniform is not the outfits they wear it is the overall cooperation of the Army/Navy
- The excerpt can be summarized by saying that Congress has the power, based on the Espionage
Act, to punish Schenck for trying to obstruct the constitutional draft because his leaflets consisted of
speech that was disloyal to the national uniform/cooperation of the army.
Ruling and Reasons for Ruling
- Unanimous ruling for the United States (9-0)
- Under the Espionage Act, Schenck's speech through the leaflets create a clear and present danger to society
and therefore was not protected under freedom of speech and the 1st amendment
- The leaflets were counted as seditious speech which is not protected by the 1st amendment because, with the
leaflets, it was possible that Schenck was trying to overthrow the government by depriving the US of an army.
- A Nation at War
- Congress can make an exception to the protection of free speech because US was in a state of war
- Congress has to think about the greater good of the country, and at this time it was fighting in a war with an
army. They couldn't fight in this war if Schenck continued to hand out leaflets persuading people to disobey
the draft.
- It was also said that when a nation is in a time of war, statements criticizing the US government can not be
tolerated and therefore not protected as free speech
- Clear and Present Danger Test
- When words are used and they create a clear and present danger to society, they can be regulated by
Congress
- The leaflets could cause harm to the nation because the nation needs an army but if people were
following the leaflets US would have no army
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1928047 http://landmarkcases.c-span.org/Case/23/Brandenburg-v-Ohio

https://www.britannica.com/event/Schenck-v-United-States https://mtsu.edu/first-amendment/article/248/patterson-v-colorado

https://constitutioncenter.org/blog/schenck-v-united-states-defining- https://www.oyez.org/cases/1968/492
the-limits-of-free-speech/

https://www.infoplease.com/history-and- https://definitions.uslegal.com/c/criminal-syndicalism/
government/cases/schenck-v-united-states-1919

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