Schenck v. U.S.

(March 3, 1919)

During WWI Schenck violated the espionage Act by mailing 15,000 fliers trying to persuade
soldiers to resist the draft. Schenck was charged with “causing and attempting to cause
insubordination in the military and U.S.” The defendant is Charles Schenck. The plaintiff is the
United States.

The question that arose is Schenck’s actions protected by the first amendment? The court
decided on a 9-0 vote that his actions were not protected by the first amendment because of the
Espionage Act. The majority opinion was made by justice Oliver Wendell Holms. It stated that
the question in every case is whether the words are used in such circumstances and are of such a
nature.

Schenck v. U.S. set guidelines for punishable actions during potentially dangerous times. It
also resulted in the Supreme Court creating the “clear and present danger” test. However, in
1969 it was overturned by Brandenburg v. Ohio. This case replaced the “clear and present
danger” test with the “imminent lawless action”. It also said that the government may only limit
speech that provokes danger sooner than the police can act.