Philadelphia, Pennsylvania 1917
Charles Schenck, the general secretary of the Socialist Party, prints and mails more
than 15,000 copies of pamphlets to men drafted into the military to fight in World War One.
Drafted meaning that, under the Selective Service Act, they HAD to enlist, whether they
wanted to or not.
So what did these pamphlets say?
Well basically, resist the draft.
The pamphlet said the draft was basically no different than slavery, which of course
goes against the Thirteenth Amendment, ya know.
It’s worth noting that Schenck, and generally the entire Socialist Party, was STRONGLY against
the war, claiming it was only being fought to benefit Wall Street investors who would
make money from selling stuff to the military.
As it turns out, by distributing these pamphlets, Schenck was BREAKING THE LAW.
You see, the United States federal government had just passed the Espionage Act, and parts
of that law said that it was illegal to try cause people enlisted in the military to disobey
orders AND it was illegal to interfere with the draft or with military recruitment.
The federal government arrested Schenck and charged him with violating the Espionage Act.
They also arrested his colleague, Elizabeth Baer, for helping him.
Schenck and Baer argued that the First Amendment protected their freedom to distribute those
pamphlets.
It was freedom of speech, punks!
Well, the U.S. District Court for Pennsylvania didn’t think the First Amendment applied
in this case.
They found Schenck and Baer guilty of conspiracy to violate the Espionage Act.
Schenck and Baer appealed to the Supreme Court, and they agreed to hear oral arguments on
January 9th and 10th, 1919.
By the way, by that time the war was over.
Regardless, Schenck and Baer wanted the Espionage Act gone to prevent this from happening in
future wars.
And so, DID the Espionage Act go against the First Amendment in respect to Schenck and
Baer’s freedom of speech?
The Court said no.
On March 3rd, they announced they had sided with the United States.
It was unanimous.
They argued that the First Amendment did NOT protect speech which encouraged enlisted folks
to disobey their military orders.
Justice Oliver Wendell Holmes, Jr. wrote the opinion.
He admitted that during normal times, Schenck and Baer would have been fine distributing
the pamphlets.
However, this was during a war, and these pamphlets were greatly hurting the war effort.
And then Ollie Wendell Holmes delivered this famous line:
“The most stringent protection of free speech would not protect a man in falsely shouting
fire in a theatre and causing a panic.
... 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 substantive evils that Congress has a right to prevent.
It is a question of proximity and degree.”
Yep, the famous “shouting fire in a crowded theater” analogy for the limitations of
free speech was thus born.
Also born?
What became known as the Clear and Present Danger doctrine, which was used by the Court
for decades to determine when there are First Amendment limitations.
Later the doctrine was replaced by the Brandenburg test in the case Brandenburg v. Ohio.
Interestingly, Holmes changed his tone a few months later in the case Abrams v. United
States, saying the Court was already misinterpreting his very own Clear and Present Danger doctrine.
Regardless, Schenck v. United States is one of the most important Supreme Court cases
in history dealing with how to interpret the First Amendment.
It’s almost the first case most of us think of when trying to explain that freedom of
speech doesn’t always mean you get to say anything you want at any time.
One thing is for sure.
Don’t yell fire in a crowded theater, ok?
That might just get you into some trouble.
I’ll see you for the next Supreme Court case, jury!
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