Schenck v. United States: A Constitutional Litmus Test

Schenck v. United States

The First Amendment explicitly prohibits Congress from passing any laws that might have the effect of “abridging the freedom of speech, or of the press.” But in the entire history of the Court, there has never been a majority of Justices holding the view that no forms of speech could be regulated under any circumstances. For the first century of America’s existence, there were no significant freedom of expression disputes that reached the Supreme Court, despite the fact that Congress routinely passed legislation in times of national turmoil that restricted some forms of free speech, most of the restrictions being political. It was during one of these times of national unrest, at the end of the First World War and the beginning of the Red Scare that the Court had its first real opportunity to rule on the constitutional guarantee of free speech in Schenck v United States.

Charles Schenck was the general secretary of the socialist party in Philadelphia, and in 1917 he printed thousands of pamphlets urging resistance to the draft that was underway for the war effort. He was charged with being in violation of the Espionage Act, with the accusation of having obstructed military recruitment. Appearing before the Supreme Court, he argued that the law’s severe penalties would inevitably have a chilling effect on dissent, and punishment would prevent criticism of government policies just as effectively as censorship.

The Supreme Court disagreed. Writing for a majority, Justice Holmes wrote in his opinion, “We admit that in many places and ordinary times the defendants in saying all that was said in the circular would be well within their constitutional rights. But the character of every act depends on the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic.”

In short, the freedom of speech was not an absolute freedom. It could and must be regulated for the good of the people, to prevent chaos or unrest rising from destructive speech.

Justice Holmes wrote that the fundamental question of the case was “whether the words are used in such circumstances and are of such a nature as to present a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

With this line, Holmes created a constitutional test that is the famous product from this case. The clear and present danger test was the first substantial Court explication of the right of free speech. It established that the government was within its rights to suppress speech if it could clearly show the potential for harm, dire consequences or evil that could result if the repressed speech were allowed. The opinion was also a shrewd compromise on Holmes’ part. He upheld the conviction, which allowed him to avoid the ire of Congress, while at the same time establishing a rather liberal interpretation of the constitutional protections of free speech. The onus was on the government to show that repression was for the public good. The clear and present danger test, therefore, would complicate government attempts at the suppression of speech, whether in print or verbal communication.

A week after the Schenck case, Holmes applied the clear and present danger test to two other cases. In Frohwerk v. United States, a writer had been convicted of accusing the US of pursuing an imperialistic policy towards Germany. In Debs v. United States, Debs had been convicted for a speech he made in Ohio praising communism and the Bolshevik Revolution. The Supreme Court upheld both convictions using the clear and present danger test, therefore reaffirming that reasonable and justified suppression of speech was constitutionally permitted.

With these three cases based on the clear and present danger test, it appeared that Holmes’ reasoning was poised to become the dominant judicial rule of thumb in weighing freedom of expression. However, there were Justices who disagreed with his view, and the verdict that would overthrow the clear and present danger test for the next twenty years was only eight months away.


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