Schenck's Actions: Breaking The Espionage Act

During World War I, the US government imposed conscription into the armed services. Charles Schenck, General Secretary of the Socialist Party in Philadelphia, opposed the draft on the grounds that it was a violation of the Thirteenth Amendment's prohibition against involuntary servitude. To spread his message, Schenck printed and distributed 15,000 leaflets to the public, in collaboration with Elizabeth Baer. However, Congress had passed the Espionage Act of 1917, which made it illegal to make or convey false reports or false statements with intent to interfere with the US military's efforts. Schenck and Baer were convicted of violating this law and appealed, arguing that the Espionage Act violated their First Amendment right to free speech. The Supreme Court upheld Schenck's conviction, setting a precedent for the clear and present danger test, which states that freedom of speech can be limited if it creates a clear and present danger.

Schenck v. United States (1919)

Charles Schenck, general secretary of the Socialist Party, and Elizabeth Baer, members of the Executive Committee of the Socialist Party in Philadelphia, were convicted of violating Section 3 of the Espionage Act of 1917. Schenck and Baer oversaw the printing and mailing of more than 15,000 fliers to men slated for conscription during World War I. The fliers urged men not to submit to the draft, stating that military conscription constituted involuntary servitude, which is prohibited by the Thirteenth Amendment.

Schenck and Baer appealed their convictions to the United States Supreme Court, arguing that their convictions and the Espionage Act itself were contrary to the First Amendment. They claimed that the Espionage Act had a "chilling effect" on free discussion of the war effort.

The Supreme Court, in a unanimous opinion written by Justice Oliver Wendell Holmes Jr., held that Schenck's criminal conviction was constitutional. The Court ruled that the Espionage Act did not conflict with the First Amendment and that Schenck's actions constituted an attempt to obstruct the draft, a criminal offense. Holmes established the famous "clear and present danger test", stating that:

> The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... 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.

The phrase "shouting fire in a crowded theater" has become a popular metaphor for the dangers and limitations of free speech.

The Espionage Act of 1917

The constitutionality of the Espionage Act of 1917 has been contested, particularly regarding its relationship to free speech. In the landmark case Schenck v. United States (1919), the Supreme Court upheld the Act's constitutionality, ruling that the danger posed during wartime justified the restrictions on First Amendment rights to freedom of speech. In writing for the majority, Justice Oliver Wendell Holmes Jr. established the "clear and present danger" test, reminding that free speech rights are not absolute. However, Holmes later began to doubt his decision due to criticism from free speech advocates and dissented in subsequent cases involving similar issues.

The First Amendment

During World War I, Congress passed the Espionage Act of 1917, which made it illegal to "make or convey false reports or false statements with intent to interfere" with the US military's efforts. The Act was later amended to include additional clauses known as the Sedition Act, which criminalised actions such as interfering with army recruitment, submitting false reports, advocating for refusal of duty, and aiding enemy forces.

Charles Schenck, a member of the Socialist Party of Philadelphia, opposed the draft and played a key role in printing and distributing 15,000 pamphlets instructing men to refuse conscription. These pamphlets claimed that the draft was a violation of the Thirteenth Amendment's prohibition of involuntary servitude. Schenck was charged with violating the Espionage Act and convicted. He appealed his conviction, arguing that the Act infringed upon his First Amendment right to free speech.

The case made its way to the US Supreme Court, which ruled against Schenck. Justice Oliver Wendell Holmes Jr., writing for a unanimous Court, applied the "clear and present danger" test. He reasoned that while in ordinary times, Schenck's actions would have been protected by the First Amendment, the circumstances of a nation at war necessitated greater restrictions on free speech. The Court held that the First Amendment did not protect speech that came close to creating a clear and present danger of significant harm that Congress had the power to prevent. In this case, the nationwide dissemination of the leaflets was deemed likely to disrupt the conscription process and thus presented a clear and present danger.

The Schenck case set a precedent for granting the government special powers during times of crisis and established the "clear and present danger" test as the standard for evaluating the constitutionality of restrictions on free speech. However, this standard would later be replaced by the stricter "imminent lawless action" standard set by Brandenburg v. Ohio (1969).

The Supreme Court's ruling

The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes Jr., held that Schenck's criminal conviction was constitutional and did not violate the First Amendment's protection of free speech. The Court applied the "clear and present danger" test, acknowledging that while in many places and ordinary times, the defendants would have been within their constitutional rights to freedom of speech, the context of a nation at war necessitated greater restrictions. The Court recognised Congress's constitutional power to raise and maintain military forces and concluded that the widespread dissemination of the leaflets was likely to disrupt the conscription process, thus presenting a clear and present danger.

Justice Holmes famously argued that the First Amendment does not protect individuals from falsely shouting "Fire!" in a crowded theatre, drawing a parallel to Schenck's distribution of leaflets. He emphasised that the character of every act depends on the circumstances in which it is done, and in the context of a nation at war, certain restrictions on freedom of speech are warranted. The Court's decision established a key precedent, reminding us that free speech rights are not absolute and must be balanced against other considerations, such as national security and public order.

The Schenck case set a standard for deciding the constitutionality of criminal convictions based on expressive behaviour and marked the first in a line of Supreme Court cases defining the modern understanding of the First Amendment. While the "clear and present danger" test articulated in Schenck has since been replaced by the stricter Brandenburg Test established in Brandenburg v. Ohio (1969), the case remains significant for its influence on the Court's handling of similar issues and its affirmation of the government's extended powers during times of crisis.

The clear and present danger test

The "clear and present danger" test originated in Schenck v. the United States (1919). The case involved Charles Schenck, who was charged under the Espionage Act for mailing printed circulars critical of the military draft during World War I.

The "clear and present danger" test says that the printed or spoken word may not be subject to previous restraint or subsequent punishment unless its expression creates a clear and present danger of bringing about a substantial evil. In other words, the test asks whether the words used are of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. This test applies to both written and spoken words.

The test features two independent conditions: first, the speech must impose a threat that a substantive evil might follow; and second, the threat must be a real, imminent threat. The court must identify and quantify both the nature of the threatened evil and the imminence of the perceived danger.

Justice Oliver Wendell Holmes Jr., who wrote the opinion for a unanimous court, famously argued that the First Amendment does not allow people to falsely shout "Fire!" in a crowded theatre, which he saw as parallel to the leaflets distributed by Schenck. Holmes felt that courts owed greater deference to the government during wartime, even when constitutional rights were at stake.

The "clear and present danger" test has been applied in various cases, including criminal prosecutions for opposition to war, statutes penalizing the advocacy of the overthrow of the government by force or violence, attacks on courts or judges, and incitement to commit crimes. However, it has not been applicable in cases involving statutes regulating labour union affairs or governing the use of school property for non-school purposes.

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