Schenck v. United States

Author:Jeffrey Lehman, Shirelle Phelps

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Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919), is a seminal case in CONSTITUTIONAL LAW, representing the first time that the U.S. Supreme Court heard a FIRST AMENDMENT challenge to a federal law on free speech grounds. In upholding the constitutionality of the ESPIONAGE ACT OF 1917 (40 Stat. 217), the Supreme Court articulated the CLEAR AND PRESENT DANGER doctrine, a test that still influences the manner in which state and federal courts decide free speech issues. This doctrine pioneered new territory by drawing a line that separates protected speech, such as the public criticism of government and its policies, from unprotected speech, such as the advocacy of illegal action.

On December 20, 1917, Charles Schenck was convicted in federal district court for violating the Espionage Act, which prohibited individuals from obstructing military recruiting, hindering enlistment, or promoting insubordination among the armed forces of the United States. Schenck, who was the general secretary of the Socialist party in the United States, had been indicted for mailing antidraft leaflets to more than fifteen thousand men in Philadelphia. The leaflets equated the draft with SLAVERY, characterized conscripts as criminals, and urged opposition to American involvement in WORLD WAR I.

Schenck appealed his conviction to the Supreme Court, which agreed to hear the case. Attorneys for Schenck challenged the constitutionality of the Espionage Act on First Amendment grounds. FREEDOM OF SPEECH, Schenck's attorneys argued, guarantees the liberty of all

The 1919 Schenck case marked the first time the Court heard a First Amendment challenge to a federal law on free speech grounds. The Court was comprised of the following justices: (standing, l-r) Brandeis, Pitney, McReynolds, Clarke, (seated, l-r) Day, McKenna, White, Holmes, Van Devanter.


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Americans to voice their opinions about even the most sensitive political issues, as long as their speech does not incite immediate illegal action. Attorneys for the federal government argued that freedom of speech does not include the freedom to undermine the SELECTIVE SERVICE SYSTEM by casting aspersions upon the draft.

In a 9?0 decision, the Supreme Court affirmed Schenck's conviction. Justice OLIVER WENDELL HOLMES JR. delivered the opinion. Holmes observed that the constitutionality of all speech depends on the...

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