Significance: This ruling established the “clear and present danger” test to decide what limits could be set on speech without violating individual freedom. The ruling states that when speech jeopardizes national security or the personal safety of others, the words should be considered carefully in terms of the likelihood of danger occurring as a result.
Background: Charles Schenck, a Socialist Party member, objected to the U.S. entry into World War I. He mailed pamphlets to those who had been drafted, urging them not to participate in what he considered a corrupt cause and claiming that the government was trying to bully people into fighting. The government charged Schenck with violating the Espionage Act of 1917, which made obstructing the draft illegal. Schenck was found guilty, and he appealed the case, claiming that the Espionage Act was unconstitutional because it limited his First Amendment right to freedom of speech.
Decision: This case was argued on January 9­10, 1919, and decided on March 3, 1919, by a vote of 9 to 0. Justice Oliver Wendell Holmes spoke for the unanimous Court, which upheld the government’s conviction of Schenck. The Court judged that the protection of free speech under the First Amendment had limits and that Schenck’s actions had gone beyond those limits. Schenck’s appeal to resist the draft could have obstructed the government’s ability to recruit troops in time of war, which violated the “clear and present danger” test.
Excerpt from the Opinion of the Court: “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 [real] evils that Congress has a right to prevent. It is a question of proximity [nearness] and degree. When a nation is at war many things that might be said in time of peace are such a hindrance [obstacle] 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.”
