By Tyler Horton ‘26

Schenck v. United States is an impactful Supreme Court case on how free speech protected by the First Amendment can be constitutionally restricted. Specifically, the Supreme Court ruled that the conditions under the Espionage Act did not violate the First Amendment when speech may pose a danger to the public. The case established the “clear and present danger” legal test, which allows the government or the judiciary to limit free speech in circumstances where speech presents itself as an imminent threat to the harm of others. The case also highlights that freedom of speech under the First Amendment is not absolute while spotlighting the balance of government authority and the rights of individuals. 

The case was decided in 1919 during the White Court era, when Chief Justice Edward Douglass White served as the highest-ranking Supreme Court justice from 1910 to 1919. White was appointed to the Supreme Court by President Grover Cleveland on February 19, 1894, and then appointed to the Chief Justice position by President William Howard Taft on December 12, 1910. Associate justices on the bench for Schenck v. United States included Oliver Wendell Holmes Jr., William R. Day, Louis Brandeis, Mahlon Pitney, Willis Van Devanter, John H. Clarke, Joseph McKenna, and James C. McReynolds. Their decision in this case is arguably one of the most important actions taken by the White Court and has defined their impact on American history and legal precedent.

In Schenck v. United States, the Supreme Court heard the appeal of Charles Schenck, a popular socialist. The federal government imposed the draft during World War I, which conscripted young men into the American armed forces. There was a lot of opposition to the draft from the American people, who did not want to serve against their will. Schenck, joined by Elizabeth Baer, another prominent socialist, printed and distributed 15,000 leaflets to the public in Philadelphia. These leaflet handouts encouraged people to peacefully oppose the draft and stated that it violated the Thirteenth Amendment and, therefore, was unconstitutional. The Thirteenth Amendment was passed by Congress in the aftermath of the Civil War and states “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”. Schenck and other socialists believed that the draft was a form of “indentured servitude”, urging the public to acknowledge it as a “scheme for capitalists”. 

By distributing the leaflets, Charles Schenck had violated the Espionage Act passed in 1917. The Espionage Act established criminal penalties for activities that sought to undermine or harm the defense of the United States and/or the advantage of a foreign entity. Schenck was charged with conspiracy to violate the act by seemingly attempting to plant seeds for insubordination to sprout in the military and America’s armed forces. Schenck decided to fight back against the charges and argued that the Espionage Act violated the First Amendment of the United States Constitution. The First Amendment protects the freedom of speech for all Americans and cannot be abridged or smothered by laws passed by Congress. Schenck believed that the Espionage Act violated his freedom to speak without consequences despite his ideological beliefs. After being found guilty on all the charges against him, he decided to appeal to the Supreme Court. Schenck’s appeal raised the constitutional question of whether or not his conviction under the Espionage Act for speaking out against the draft violated his right to freedom of speech protected by the First Amendment.

In a unanimous decision, the Court ruled that the Espionage Act did not violate or unconstitutionally restrict Schenck’s First Amendment rights since his actions were intended to result in insubordination and crimes against the United States Government. Associate Justice Oliver Wendell Holmes wrote the unanimous opinion, where he stated, “We (the Supreme Court) 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 supports the Court’s reasoning to uphold Schenck’s conviction since the manner of his actions was questionable. Holmes also wrote, “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”. The Court found that the conviction under the Espionage Act was appropriate because of Congress’s authority in a time of war and national vulnerability. They also concluded that courts have more of an obligation during wartime to defer to the United States Government, regardless of the risks posed to rights protected by the Constitution. 

The biggest takeaway from this case is that Justice Holmes established the clear and present danger test. This legal test, which was mentioned in the introduction, is a standard used when the government has the power to limit speech if there is a “clear and present danger” that the government is obligated to avert. In the Court’s opinion, Holmes famously compared, “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”. This analogy clearly shows the logic used by Holmes and the other Justices that the protection of society and the greater good outweighs the actions of an individual in cases of free speech. However, there was concern for the power held by the legal standard and the potential abuse that stems from it. The freedoms of the First Amendment are core principles in American democracy, and the test increased the likely danger of overbreadth (broadly legal laws or standards that can infringe on constitutionally protected rights).

The legal test has evolved so that an imminent danger, a serious degree of harm, and a link between the two must be present for the test to be used to determine if free speech should be restricted. Over time, it began to show weaknesses in cases that consist of differentiating circumstances that make it hard for the broadness of the clear and present danger test to be effective. Schenck v. United States does not have any immediate relevance in today’s legal system, and the clear and present danger test was retired. Rather, the importance of its decision paved the way for an improved legal standard to be used in cases of free speech: the “imminent lawless action test”. In the case Brandenburg v. Ohio (1969), fifty years after Schenck v. United States was decided, the Supreme Court ruled that speech advocating for illegal misconduct that does not incite imminent, lawless action is protected by the First Amendment. The clear and present danger test before Brandenburg v. Ohio was broad when used in cases such as Gitlow v. New York (1925). The Court upheld convictions using the legal test, but some justices dissented and stressed the importance of protecting even unpopular opinions when imminent threats are not created, making the test weak by treading a thin line of censorship authority. The imminent lawless action test, known more popularly as the “Brandenburg test”, is still used to this day when there are cases that determine when freedom of speech that incites violence or insubordination can be restricted. Over the past century, the protections of the First Amendment and how the courts view them from a legal standpoint have highlighted the value of the freedoms enshrined in the United States Constitution and how vulnerable they can be.

Tyler Horton is a senior majoring in political science.

Sources

Asp, D. (2023, August 8). Espionage Act of 1917 (1917). Free Speech Center – At Middle Tennessee State University. https://firstamendment.mtsu.edu/article/espionage-act-of-1917/ 

Brandenburg v. Ohio. (n.d.). Oyez. Retrieved April 27, 2025. https://www.oyez.org/cases/1968/492

Edward Douglass White Court (1910-1921). Justia. Retrieved on April 17, 2025. https://supreme.justia.com/supreme-court-history/white-court/ 

Gitlow v. New York. (n.d.). Oyez. Retrieved April 27, 2025. https://www.oyez.org/cases/1900-1940/268us652 

McBride, A. (2006, December). Schenck v. U.S. (1919). Thirteen PBS. https://www.thirteen.org/wnet/supremecourt/capitalism/landmark_schenck.html 

Schenck v. United States. (n.d.). Oyez. Retrieved April 15, 2025. https://www.oyez.org/cases/1900-1940/249us47  

Schenck v. United States (1919). National Constitution Center. Retrieved April 15, 2025. https://constitutioncenter.org/the-constitution/supreme-court-case-library/schenck-v-united-states 

Schenck v. United States, 249 U.S. 47 (1919). Justia. Retrieved April 15, 2025. https://supreme.justia.com/cases/federal/us/249/47/ 

13th Amendment to the U.S. Constitution: Abolition of Slavery (1865). National Archives. Retrieved on April 17, 2025. https://www.archives.gov/milestone-documents/13th-amendment#:~:text=The%2013th%20Amendment%20to%20the%20United%20States%20Constitution%20provides%20that,place%20subject%20to%20their%20jurisdiction.%22