United States Supreme Court
case on the Constitutionality of the Espionage Act
under First Amendment
Charles Schenck, general secretary of the Socialist Party, was convicted of attempting to obstruct the draft by sending out 15,000 pamphlets to potential and recent draftees. The pamphlet argued that the draft for World War I provided by the Conscription Act was unconstitutional involuntary servitude and urged people to deny the federal government the power of conscription.
The Supreme Court upheld the conviction. No information exists on whether the decision was unanimous or not. Justice Oliver Wendell Holmes, Jr. wrote the Court's solitary affirming opinion. He argues that while ordinarily the ideas expressed in the pamphlet would deserve protection under the freedom of speech reaffirmed in the Bill of Rights, the clear and present danger caused by the circumstances gave the government the permission to ban the ideas expressed. This case is the source of the famous quote "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.", often paraphrased as "You can't shout fire in a crowded theater". Later court cases (Brandenburg v. Ohio) have made it clear that any limitation on speech must be restricted to the endorsement of imminent lawless action, such as fighting words and riots, not merely the expression of ideas. Holmes himself later agreed the decision had been abused in government action against dissidents, and dissented in a similar case, Abrams v. United States, where he felt the statements made presented no threat to the United States or the war against Germany.
I find this case one of the poorer decisions made by the Supreme Court. Reading Schenck's pamphlet, it's clear he is expressing a political idea of great importance - the draft is unconstitutional and you should refuse to fight for the government. Looking at the First Amendment, it reads: "Congress shall make no law... abridging the freedom of speech," As the United States does not have a qualifer like Canada's Notwithstanding clause, and no Amendment restricting the exercise of our inalienable rights during war or other state of emergencies, the Espionage Act under which Schenck was convicted seems clearly unconstitutional. Personally, I find the fact that the United States government could not tolerate a differing opinion to be a sign of weakness, an admission that the draft is an illegal act unable to stand up to the light of scrutiny and a support of the idea of deep anarchy - the only power a state has is the power others grant it in their belief. I am very thankful it was overturned, which makes it one of the few extra-constitutional activities to be restrained. There's far too many of these "Well it's an emergency so the Constitution doesn't apply" arguments as there is. For a take at this decision from an actual lawyer, look at Alan Dershowitz's "Shouting Fire!" essay.
(Bolded emphasis personally added.)
Evidence held sufficient to connect the defendants with the mailing of printed circulars in pursuance
of a conspiracy to obstruct the recruiting and enlistment service, contrary to the Espionage Act of
June 15, 1917. P. 49.
Incriminating document seized under a search warrant directed against a Socialist headquarters, held
admissible in evidence, consistently with the Fourth and Fifth Amendment, in a criminal prosecution
against the general secretary of a Socialist party, who had charge of the office. P. 50.
Words which, ordinarily and in many places, would be within the freedom of speech protected by
the First Amendment may become subject to prohibition when of such a nature and used in such
circumstances a to create a clear and present danger that they will bring about the substantive evils
which Congress has a right to prevent. The character of every act depends upon the circumstances
in which it is done. P. 51.
A conspiracy to circulate among men called and accepted for military service under the Selective
Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the intent
to effect that result, and followed by the sending of such circulars, is within the power of Congress
to punish, and is punishable under the Espionage Act, § 4, although unsuccessful. P. 52.
The word "recruiting," as used in the Espionage Act, § 3, means the gaining of fresh supplies of men
for the military forces, as well by draft a otherwise. P. 52.
The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40 Stat. 553, did not affect
the prosecution of offenses under the former. P. 53.
The case is stated in the opinion.
U.S. Supreme Court
SCHENCK v. U.S. , 249 U.S. 47 (1919)
249 U.S. 47
Nos. 437, 438.
Argued Jan. 9 and 10, 1919.
Decided March 3, 1919.
[249 U.S. 47, 48] Messrs. Henry John Nelson and Henry Johns Gibbons, both of Philadelphia, Pa., for
plaintiffs in error.
Mr. John Lord O'Brian, of Buffalo, N. Y., for the United States.
Mr. Justice HOLMES delivered the opinion of the Court.
This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June
15, 1917, c. 30, tit. 1, 3, 40 Stat. 217, 219 (Comp. St. 1918, 10212c), by causing and attempting [249
U.S. 47, 49] to cause insubordination, &c., 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,
to-wit, that the defendant wilfully conspired to have printed and circulated to men who had been called and accepted for military
service under the Act of May 18, 1917, c. 15, 40 Stat. 76 (Comp. St. 1918, 2044a-2044k), a document set forth and alleged
to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy,
ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offense against the
United States, to-wit, to use the mails for the transmission of matter declared to be non-mailable by title 12, 2, of the Act of June
15, 1917 (Comp. St. 1918, 10401b), to-wit, the above mentioned document, with an averment of the same overt acts. The
third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants
were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law
abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also
of which we must dispose.
It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the
documents. According to the testimony Schenck said he was general secretary of the Socialist party and had charge of the
Socialist headquarters from which the documents were sent. He identified a book found there as the minutes of the Executive
Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other
side of one of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck personally
attended to the printing. On [249 U.S. 47, 50] August 20 the general secretary's report said 'Obtained new leaflets from printer and
started work addressing envelopes' &c.; and there was a resolve that Comrade Schenck be allowed $125 for sending leaflets
through the mail. He said that he had about fifteen or sixteen thousand printed. There were files of the circular in question in the
inner office which he said were printed on the other side of the one sided circular and were there for distribution. Other copies
were proved to have been sent through the mails to drafted men. Without going into confirmatory details that were proved, no
reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about. As to the
defendant Baer there was evidence that she was a member of the Executive Board and that the minutes of its transactions were
hers. The argument as to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the
seriousness of the real defence.
It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as
appears. The contrary is established. Adams v. New York, 192 U.S. 585 , 24 Sup. Ct. 372; Weeks v. United States, 232 U.S.
383, 395 , 396 S., 34 Sup. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. The search warrant did not issue against the
defendant but against the Socialist headquarters at 1326 Arch street and it would seem that the documents technically were not
even in the defendants' possession. See Johnson v. United States, 228 U.S. 457 , 33 Sup. Ct. 572, 47 L. R. A. ( N. S.) 263.
Notwithstanding some protest in argument the notion that evidence even directly proceeding from the defendant in a criminal
proceeding is excluded in all cases by the Fifth Amendment is plainly unsound. Holt v. United States, 218 U.S. 245, 252 , 253 S.,
31 Sup. Ct. 2
The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea
embodied in it was violated by the conscription act and that a conscript is little better than a [249 U.S. 47, 51] convict. In
impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in
the interest of Wall Street's chosen few. It said, 'Do not submit to intimidation,' but in form at least confined itself to peaceful
measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed 'Assert Your
Rights.' It stated reasons for alleging that any one violated the Constitution when he refused to recognize 'your right to assert your
opposition to the draft,' and went on, 'If you do not assert and support your rights, you are helping to deny or disparage rights
which it is the solemn duty of all citizens and residents of the United States to retain.' It described the arguments on the other side
as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to
support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other
lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves , &c., &c., winding
up, 'You must do your share to maintain, support and uphold the rights of the people of this country.' Of course the document
would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to
have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny
that the jury might find against them on this point.
But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two
of the strongest expressions are said to be quoted respectively from well-known public men. It well may be that the prohibition
of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the [249
U.S. 47, 52] main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Sup. Ct. 556, 51 L. ed. 879, 10 Ann.
Cas. 689. We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have
been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens
v. Wisconsin, 195 U.S. 194, 205 , 206 S., 25 Sup. Ct. 3. The most stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that
may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 439 , 31 S. Sup. Ct. 492, 55 L. ed. 797,
34 L. R. A. (N. S.) 874. 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. It seems to be admitted that if an actual obstruction of the recruiting service were proved,
liability for words that produced that effect might be enforced. The statute of 1917 in section 4 (Comp. St. 1918 , 10212d)
punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating a paper,) its tendency and the
intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.
Goldman v. United States, 245 U.S. 474 , 477 38 Sup. Ct. 166, 62 L. ed. 410. Indeed that case might be said to dispose of the
present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we
have thought fit to add a few words.
It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The [249 U.S. 47, 53] words
are 'obstruct the recruiting or enlistment service,' and it might be suggested that they refer only to making it hard to get volunteers.
Recruiting heretofore usually having been accomplished by getting volunteers the word is apt to call up that method only in our
minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an alternative to enlistment
or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40
Stat. 553, of course, does not affect the present indictment and would not, even if the former act had been repealed. Rev. St. 13
(Comp. St. 14).