One of the hallmarks of United States democracy is the freedom granted to the populace by the First Amendment of the Constitution. While these rights, such as freedom of the press and the right to protest, are almost always respected by the government, at times legislation has been passed that may infringe upon these rights. In such cases, it is the role of domestic courts to evaluate the permissibility of such government action. In Schenk v. United States, a new threshold was created for determining when the government can supersede the First Amendment right to free speech. Though the standard created by Schenk has since changed, the case still remains relevant today as an important example of the role of the justice system in evaluating the constitutionality of federal laws and actions.
Background of the Case
Soon after the United States officially entered World War I, Congress passed the Espionage Act of 1917. The following year, the law was amended to add additional clauses known as the Sedition Act. The main purpose of the act was criminalizing interference with the United States army and naval forces; this included interfering with army recruitment, submitting false reports or information to the army, advocating for refusal of duty in the armed forces, aiding enemy forces, and more.
Though the president at the time, Woodrow Wilson, had wanted the law to include provisions for restricting the press, ultimately lawmakers decided that such measures would be an unconstitutional prior restraint of the press.
Enforcement of the act was far from uniform and often left to the discretion of local officials. Senator Joe McCarthy's Red Scare of the 1950s also influenced the uneven enforcement of the law, with the Espionage and Sedition Acts being used to prosecute anti-capitalist activists.
Charles Schenk and Elizabeth Baer, whose case was decided together with Schenk's, were part of the Socialist Party of Philadelphia. Both were members of the party's Executive Committee and Schenk served as General Secretary. The two were charged with violating the Espionage Act after the Executive Committee, under Schenk's direction, printed and mailed out 15,000 pamphlets instructing men to refuse the army draft. These pamphlets claimed that forced conscription was a violation of the Thirteenth Amendment prohibition of involuntary servitude.
After charges were filed, Schenk and Baer joined a host of others charged with violating the Espionage Act in appealing on the grounds that they were simply exercising their First Amendment rights to free speech and that the Espionage Act was therefore unconstitutional. The case made its way to the Supreme Court, where it was argued in January 1919 and decided on March 3, 1919.
Justice Holmes wrote the decision for a unanimous court. The Supreme Court affirmed the criminal charges against Schenk and held that the Espionage Act did not violate the First Amendment protection of free speech.
The opinion begins with the Court first addressing the three counts against Schenk, who was described as illegally printing and distributing the pamphlets by mail, thereby participating in a "conspiracy to violate the Espionage Act of June 15, 1917... by causing and attempting to cause insubordination... in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire."
The Supreme Court next examined evidence that Schenk knew of and participated in the distribution of the pamphlets, nullifying the defense that he was unaware of the Executive Committee's actions. The validity of the search warrant used to seize evidence was also affirmed.
The opinion then established that the pamphlets had been sent out with the clear goal to "obstruct the carrying of [the draft] out." The next part of the decision, its most famous and impactful precedent, concerned the validity of the Espionage Act under the First Amendment.
The "Clear and Present Danger" Test
Holmes wrote that though in some cases the government cannot abridge a citizen's right to free speech, "the character of every act depends upon the circumstances in which it is done....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. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right."
Justice Holmes compared the Espionage Act's criminalization of anti-military speech and action to yelling "Fire!" in a crowded theater, an example of speech which is unprotected by the Constitution. Because the wording of the Espionage Act criminalized conspiracies to obstruct military operations, which the pamphlet effort indubitably was, the Supreme Court upheld the Act's constitutionality under the First Amendment because of the extenuating wartime and national security circumstances.
Essentially, Holmes was saying that the circumstance of being at war and needing to mount a national defense supplied by the draft gave the government the right to take special actions to mitigate "a clear and present danger." The phrasing here of Holmes's opinion formed one of the earliest precedents for granting the government special powers during times of public crisis. Though the threshold Holmes somewhat nebulously defined in the Schenk decision would later be superseded, this decision still plays a role in how the Supreme Court handles similar cases to this one.
Schenk v. United States remains notable for influencing two contentious issues that have continuously come before the Supreme Court: the wartime powers of the government, and the constitutionality of any restriction on the First Amendment freedom of speech. While the latter typically receives more attention among politicians, justices, and legal scholars alike, the Schenk case also establishes an important precedent affirming the extension of additional authority granted to the President and Congress during times of public crisis.
While the Constitution grants Congress the power to declare war, it also appoints the president as Commander-In-Chief of the U.S. military. For centuries, legal scholars and courts have debated whether the president can wield wartime powers absent an official Congressional declaration of war, yet there has been no thoroughly established precedent on the matter despite Congress passing the War Powers Resolution of 1973.
Interestingly, the Constitution makes no mention of any sort of wartime power grant— though that has not stopped centuries of presidents from acting under this assumed authority. Courts have also clashed with the executive branch over their differing interpretations on the subject.
Wartime powers would later be defined more precisely by cases like Korematsu v. United States (1944) and Youngstown Sheet & Tube Co. v. Sawyer (1952), but Schenk was possibly the most prominent case since the Lincoln presidency to address this grant of extra authority.
Free Speech Today
The "clear and present danger" threshold established by the Schenk opinion was used by courts in free speech limit cases for several decades, when it was replaced by the "imminent lawless action" standard set by Brandenberg v. Ohio (1969). In the intervening years, however, Holmes's opinion influenced the Supreme Court's reasoning in several cases including Whitney v. California (1927).
The Espionage Act of 1917, which formed the basis for Schenk's case, still remains in force today. Recent notable individuals who have been indicted under the Act include Chelsea Manning (Wikileaks), Julian Assange (Wikileaks), Edward Snowden (NSA files), and Daniel Ellsberg (Pentagon Papers).
Our understanding of the First Amendment and its limits is constantly evolving as the Supreme Court revises its precedents to determine what is or is not constitutionally permissible. Regardless of future interpretations of wartime powers and free speech limitations, Schenk v. United States remains an important and formative part of the judicial history of the United States.