Schenck v. United States (1919)

Schenck v. United States
249 U.S. 47 (1919)

Facts: Schenck was convicted of conspiracy to commit espionage and attempting to cause insubordination in the military for circulating documents which stated that the conscription act violated the Thirteenth Amendment to the Constitution. Schenck appealed.

Issue: Is distributing anti-conscription literature during war time protected under the First Amendment?

Holding: No.

Analysis: The court stated that 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 substantial evils that Congress has a right to prevent.” During war, speech which would normally be protected, may be so damaging to the war effort, that it must be prevented. If actual damage to recruiting services was caused, the liability for the words which caused it could be enforced.

Previous post:

Next post: