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

Author:Martin Shapiro

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The FREEDOM OF SPEECH provisions of the FIRST AMENDMENT played a singularly retiring role in American constitutional law until the time of WORLD WAR I or, more precisely, until the Russian Revolution and the Red Scare that it generated in the United States. The Sedition Act of 1798 (see ALIEN AND SEDITION ACTS) obviously posed serious First Amendment questions but was not tested in the Supreme Court and was soon repealed. A scattering of free speech claims and oblique pronouncements by the federal courts occurred after 1900, but speech issues, even when they did arise, typically appeared in state courts in the contexts of OBSCENITY prosecutions and labor disputes. The Court did not declare the First Amendment applicable to the states through the due process clause of the FOURTEENTH AMENDMENT (see INCORPORATION DOCTRINE) until GITLOW V. NEW YORK (1925). Furthermore, in its most direct pronouncement on the freedom of speech provision of the First Amendment, Patterson v. Colorado (1907), the Court, speaking through Justice OLIVER WENDELL HOLMES, had suggested that the provision barred only prior restraints, a position that Holmes abandoned in Schenck.

In 1917 Congress passed an ESPIONAGE ACT making it a crime to cause or attempt to cause insubordination in the armed forces, obstruct recruitment or enlistment, and otherwise urge, incite, or advocate obstruction or resistance to the war effort. Although there had been much bitter debate about U. S. entry into World War I, the speakers whose prosecutions raised First Amendment issues that ultimately reached the Supreme Court were not German sympathizers. They were left-wing sympathizers with the Russian Revolution who were provoked by the dispatch of Allied expeditionary forces to Russia. If the American war machine was to be turned on the Revolution, it must be stopped.

Prosecutions of such revolutionary sympathizers triggered three important federal court decisions that initiated the jurisprudence of the First Amendment: MASSES PUBLISHING COMPANY V. PATTEN (1917), Schenck v. United States, and ABRAMS V. UNITED STATES (1919). Schenck was the first major Supreme Court pronouncement on freedom of speech.

Schenck was general secretary of the Socialist Party which distributed to prospective draftees a leaflet denouncing CONSCRIPTION and urging recipients to assert their opposition to it. He was convicted of conspiracy to violate the Espionage Act by attempting to...

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