Debs And Schenck: Lawbreakers Or Not?

In 1919, the United States Supreme Court ruled on two cases, Schenck v. United States and Debs v. United States, which set a precedent for upholding convictions for those who opposed World War I. Charles Schenck was convicted of distributing flyers urging men to resist the draft, while Eugene Debs was imprisoned for a speech condemning the war. Both argued that their actions were protected by the First Amendment, but the Court disagreed, stating that their words incited a clear and present danger and could obstruct military recruitment. These cases sparked debate over the limits of free speech during wartime and had a significant impact on the modern understanding of the First Amendment.

Eugene V. Debs' anti-war speech

On June 16, 1918, Eugene V. Debs—a prominent socialist and labour organiser—delivered a famous anti-war speech in Canton, Ohio, protesting the United States' involvement in World War I. This speech resulted in his arrest and conviction under the Espionage Act of 1917, which had been signed into law by President Woodrow Wilson a year earlier.

In his speech, Debs criticised the war and the role of the working class in it:

> They have always taught you that it is your patriotic duty to go to war and slaughter yourselves at their command. You have never had a voice in the war. The working class, who make the sacrifices, who shed the blood, have never yet had a voice in declaring war.

Debs also questioned why workers should fight for capitalists and owners, stating:

> I know of no reason why the workers should fight for what the capitalists own, or slaughter one another for countries that belong to their masters.

He further emphasised the importance of free speech, even in times of war:

> I believe in free speech, in war as well as in peace. If the Espionage Law stands, then the Constitution of the United States is dead.

Debs was arrested on June 30, 1918, and charged with ten counts of violating the Espionage and Sedition Acts during his Canton speech. He was convicted and sentenced to ten years in prison. Debs appealed his conviction, arguing that his speech was protected by the First Amendment, but the Supreme Court upheld his conviction, finding that he had shown the "intention and effect of obstructing the draft and recruitment for the war."

Debs' anti-war speech and subsequent conviction under the Espionage Act made him a symbol of the growing movement for amnesty for imprisoned radicals. He continued to be an influential figure, even while incarcerated, and his case highlighted the tensions between free speech and government repression during wartime.

The Espionage Act of 1917

The Act made it a crime to convey information intended to interfere with the war effort. It created criminal penalties for anyone obstructing enlistment in the armed forces or causing insubordination or disloyalty in the military or naval forces. It also gave the Postmaster General the authority to impound or refuse to mail publications that violated its prohibitions.

The constitutionality of the Espionage Act, its relationship to free speech, and the meaning of its language have been contested in court. While modern scholars view the Act as violating core free speech protections, the Supreme Court initially upheld its constitutionality. In the case of Schenck v. United States (1919), the Supreme Court unanimously ruled that the Act did not violate the freedom of speech of those convicted under its provisions.

The First Amendment

Debs appealed his conviction, arguing that his speech was protected by the First Amendment. The case, Debs v. United States, reached the Supreme Court, where Justice Oliver Wendell Holmes Jr. authored a unanimous decision sustaining Debs' conviction. Holmes determined that despite Debs' caution, his intent and the general tendency of his words were sufficient for a jury to find him guilty. The Court upheld the power of the Espionage Act of 1917 and maintained Debs' sentence of 10 years' imprisonment.

One week before the Debs opinion, Justice Holmes introduced the "clear and present danger" test in Schenck v. United States (1919). This test suggested that judges must consider the context of the speech rather than solely focusing on the "bad tendency" of the words used. In the Schenck case, the Supreme Court affirmed the conviction of Socialist leaders Charles Schenck and Elizabeth Baer for violating the Espionage Act of 1917. They were charged with sending literature to conscripted soldiers, claiming that the draft was a form of involuntary servitude, which obstructed the "recruiting or enlistment service".

The Schenck decision established that Congress has greater leeway in restricting speech during wartime compared to peacetime. The "clear and present danger" test set a precedent, indicating that an individual would not be protected by the First Amendment if their speech caused public panic, such as falsely shouting "Fire!" in a theatre. While the circumstances of Debs and Schenck differed, with Schenck addressing draft inductees and Debs speaking to a general audience, the cases collectively highlighted the constraints on First Amendment freedoms during wartime.

Schenck v. United States (1919)

The Executive Committee authorized Schenck to print and distribute 15,000 leaflets to the public, declaring that the Thirteenth Amendment's prohibition against involuntary servitude meant that the draft was unconstitutional and should not be obeyed. This was in direct opposition to the federal government's imposition of conscription during the war.

Schenck and the other defendants were convicted of violating the Espionage Act and appealed, arguing that the statute violated their First Amendment rights. However, the Supreme Court, in a unanimous opinion written by Justice Oliver Wendell Holmes Jr., upheld the convictions. Holmes introduced the "clear and present danger" test, stating that courts owed greater deference to the government during wartime, even when constitutional rights were at stake. He argued that the First Amendment does not protect speech that creates a clear and present danger of a significant evil that Congress has the power to prevent. In this case, the widespread dissemination of the leaflets was deemed sufficiently likely to disrupt the conscription process.

The Schenck decision is notable for defining the "clear and present danger" test that governed the analysis of courts during this period. However, the Court's interpretation of this standard became more narrow over time, and the decision was largely overturned by Brandenburg v. Ohio in 1969, which limited the scope of speech that the government may ban.

The Supreme Court's ruling

Despite his precautions, Debs was arrested for his speech and convicted of obstructing military recruitment and enlistment. He was sentenced to ten years in prison and appealed his conviction, arguing that his speech was protected by the First Amendment. The Supreme Court, in a unanimous opinion by Justice Oliver Wendell Holmes Jr., upheld Debs' conviction, reasoning that his case was similar to Schenck v. United States (1919). In the Schenck case, the Court had concluded that the arrest of an individual for distributing leaflets encouraging readers to oppose the draft was constitutional. The Court found Debs' sympathy for individuals convicted of opposing the draft and obstructing recruitment analogous to the situation in Schenck, thus validating his conviction.

In his opinion, Justice Holmes stated that Debs' case was essentially the same as Schenck's, as both involved individuals attempting to obstruct the draft and recruitment for the war. The Court examined several statements made by Debs and found that he had shown the "intention and effect of obstructing the draft and recruitment." While Debs had tempered his speech to comply with the Espionage Act, the Court determined that his underlying intent was sufficient for a jury to convict him fairly.

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