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

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

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Freedom of Speech

The Issue

Is the First Amendment violated when Congress makes a law that punishes dissent in wartime?

Facts and Background:

When United States of America jumped into the World War I 1917, congress had made a law named as “Espionage Act”. This act had been passed to keep intact the loyalty of the soldiers. The law opines that whosoever influences soldiers to change their opinions and forces them to disloyalty shall be considered as a serious crime.  It is said that more than 2000 people had violated this law and they were put on judicial trial.

Apart from others, Charles Schenck was also against the war. To change the minds of soldiers, he sent thousands of pamphlets through post. He wrote on his pamphlet that “Government of America had no right to direct citizens of United States to kill people of other countries”.

After knowing all this, government of United States had allegedly accused him for deliberately weakening the loyalty of soldiers.  On the other hand, Schenck said that Espionage Act was literally unconstitutional and it had broken the spirit of first amendment that “Congress would not make any law which overrules the freedom of speech”. This case, after going through the federal courts, was finally judged by Supreme Court in 1919.

The Decision:

Justice Oliver Wendell Holmes was the judge who passed the decree of this case. He said in his ruling that Espionage Act was not overruling the first amendment and supported the conviction of Schenck.  Justice Holmes admitted that “whatever Schenck had written in pamphlet was his right but it must not be forgotten that freedom of speech is confined to certain circumstance”.  He gave an example that if a person intentionally creates panic and attempts to violate rights of others, would not be able to claim protection of freedom of speech.  He further said that “the situation in war is totally different from the situation in peace”.  He was of the opinion that during war government has right to punish someone who intends to obstruct recruitment process. And, whatever congress did was absolutely right.

The Impact of the Decision:

The decision of Justice Holmes expresses what is called “clear and present danger test”.  Learned Hand a famous lower court judge admitted that “whenever government says that freedom of speech of someone is posing a danger, judges must reckon both the likelihood of happening and seriousness of danger. Take for the granted, if a person says “the government is not democracy but dictatorship thereby revolution would be the best idea. At this situation, we cannot punish him unless his words are not making danger”.  Some judges favored the idea of clear and present danger test and some judges clearly disapproved it.  But, the judge who was vehemently opposing it was Justice Hugo Black.

He said that the idea of clear and present danger test was balancing the first amendment and it was destroying the spirit of freedom.  He further said that “in the name of freedom of speech, if a person takes a loud speaker at 4:00 am early morning and creates noise in his area, may be punished but he would not face charges for the content he used through the loudspeaker”.

Find Out

1. Write in your own words the absolutist view of the First Amendment and the balancing view of the First Amendment.

2. If the Supreme Court had taken an absolutist view of the First Amendment, could it still have upheld Schenck’s conviction? Explain your answer.

3. Choose between the absolutist view and balancing view of the First Amendment. Use your own perception to defend the view you opt against the criticisms that would be made by those who choose the other view.

Supplemental Resources

Conversations on Law & Liberty in Times of Crisis

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