Schenck v. United States

Schenck v. United States
Supreme Court of the United States
Argued January 9–10, 1919 Decided March 3, 1919
Full case name	Charles T. Schenck v. United States, Elizabeth Baer v. United States
Citations	249 U.S. 47 (more) 63 L. Ed. 470; 1919 U.S. LEXIS 2223; 17 Ohio L. Rep. 26; 17 Ohio L. Rep. 149
Case history
Prior	Schenck convicted, E.D. Pa.; motion for new trial denied, 253 F. 212
Subsequent	None
Holding
Defendant's criticism of the draft was not protected by the First Amendment, because it was intended to result in a crime and created a clear and present danger to the enlistment and recruiting service of the U.S. armed forces during a state of war.
Court membership
Chief Justice Edward D. White Associate Justices Joseph McKenna · Oliver W. Holmes Jr. William R. Day · Willis Van Devanter Mahlon Pitney · James C. McReynolds Louis Brandeis · John H. Clarke
Case opinion
Majority	Holmes, joined by unanimous
Laws applied
U.S. Const. amend. I; 50 U.S.C. § 33
Overruled by
Brandenburg v. Ohio, 395 U.S. 444 (1969) (in part)

Schenck v. United States, 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes Jr., concluded that Charles Schenck, who distributed flyers to draft-age men urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense. The First Amendment did not protect Schenck from prosecution, even though, "in many places and in ordinary times, Schenck, in saying all that was said in the circular, would have been within his constitutional rights. But the character of every act depends upon the circumstances in which it is done." In this case, Holmes said, "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." Therefore, Schenck could be punished.

The Court followed this reasoning to uphold a series of convictions arising out of prosecutions during wartime, but Holmes began to dissent in the case of Abrams v. United States, insisting that the Court had departed from the standard he had crafted for them and had begun to allow punishment for ideas. In 1969, Schenck was largely overturned by Brandenburg v. Ohio, which limited the scope of speech that the government may ban to that directed to and likely to incite imminent lawless action (e.g. a riot).^[1]