Anatomy of a Case Activity—Answer Key

Schenck v. United States (1919)

Argued: January 9–10, 1919

Decided: March 3, 1919

This case summary has the labels removed from the sections. Read each section and discuss which  label from the word bank best fits that section. Label the sections correctly by writing the section  name on the line.

Label the sections of the case with these parts:

− Arguments for the Schenck (Petitioner)

− Decision

− Impact

− Constitutional Provisions and Federal Statute

− Issue

− Background

− Arguments for United States (Respondent)

− Facts

Section name: Background

The First Amendment to the U.S. Constitution protects the freedom of speech. However, like all  rights protected by the Constitution, this right is not absolute. The government can place reasonable  limits on protected rights in many instances. How much the government can limit free speech  depends on the context including the time, manner, and place the speech occurs. Generally, the  government cannot control the content of someone’s speech. At various points in history, the  government has argued that national security concerns or times of war permit the government to  place additional restrictions on speech. Two months after the United States formally entered World  War I, Congress passed the Espionage Act of 1917. Many elected officials were worried about the  presence of foreign spies or American sympathizers with enemies of the Unites States. The  Espionage Act stated, “Whoever, when the United States is at war, … shall willfully obstruct the  recruiting or enlistment service of the United States, to the injury of the service or of the United  States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than  twenty years, or both.” A number of Americans were arrested and convicted under this law during  World War I.

In this case the Supreme Court had to decide whether the speech that was punished for violating the  Espionage Act was protected by the First Amendment.

Section name: Facts

Charles T. Schenck was the general secretary for the Socialist Party chapter in Philadelphia. He was  convicted of violating the Espionage Act after printing and mailing 15,000 fliers to draft-age men  arguing that conscription (the draft) was unconstitutional and urging them to resist. Elizabeth Baer,  a fellow executive committee member of the chapter, was also convicted.

On the side of the flier entitled “Long Live the Constitution of the United States,” the Socialist  Party argued that conscription was a form of “involuntary servitude” and thereby outlawed by the  13th Amendment. Schenck’s flier also implored its recipients “to write to your Congressman and tell  him you want the [conscription] law repealed. Do not submit to intimidation. You have the right to  demand the repeal of any law. Exercise your rights of free speech, peaceful assemblage, and  petitioning the government for a redress of grievances.”

On the reverse side entitled “Assert Your Rights!”, Schenck adopted more fiery language. He  implored his audience to “do your share to maintain, support and uphold the rights of the people of  this country” or else “you are helping condone a most infamous and insidious conspiracy” fueled by  “cunning politicians and a mercenary capitalist press.”

In 1917, after Schenck’s conviction for violating the Espionage Act, he asked the trial court for a  new trial. This request was denied. He then appealed to the U.S. Supreme Court, which agreed to  review his case in 1919.

Section name: Issue

Did Schenck’s conviction under the Espionage Act for criticizing the draft violate his First  Amendment free speech rights?

Section name: Constitutional Provisions and Federal Statute

− First Amendment to the U.S. Constitution 

“Congress shall make no law… abridging the freedom of speech, or of the press; or the right  of the people peaceably to assemble, and to petition the Government for a redress of  grievances.”

− Espionage Act, Section 3

“Whoever, when the United States is at war, … shall willfully cause or attempt to cause  insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the  United States, or shall willfully obstruct the recruiting or enlistment service of the United  States, to the injury of the service or of the United States, shall be punished by a fine of not  more than $10,000 or imprisonment for not more than twenty years, or both.”

Section name: Arguments for Schenck (petitioner)

− The First Amendment not only prevents Congress from prohibiting criticism of government  action, it also protects the speaker from punishment after the expression.

− The First Amendment must protect the free discussion of public matters. This practice helps  hold government officials accountable and promotes transparency. Schenck was simply  sharing his opinions about important government actions and policies.

− There is an important difference between words and actions. While the government may  punish those who refuse to serve in the military once drafted (action), the effort to persuade  people not to serve is protected by the Constitution as speech (words).

− Schenck exercised his free speech rights to communicate his opinions on important public  issues. He was not directly calling on readers to break the law, only to exercise their right to  redress grievances by writing their Congressional representatives.

Section name: Arguments for the United States (respondent)

− Congress is empowered to declare war and ensure the functioning of the U.S. military. In a  time of war, it may limit the expression of opinions if necessary to make sure the military  and government can function—which includes the necessary recruitment and enlistment of  soldiers.

− In distributing the flier, Schenck and Baer possessed a clear intent to persuade others to not  enlist. That is a violation of the Espionage Act, which prohibits “willfully…obstruct[ing] the  recruiting or enlistment service of the United States.”

− War time is different from peace time; during war the government should have extra power  to ensure the safety and security of the American people, even if that means limiting certain  kinds of speech.

Section name: Decision

Justice Oliver Wendell Holmes delivered the unanimous opinion (9-0) for the Court in favor of the  United States, joined by Chief Justice White and Justices McKenna, Day, van Devanter, Pitney,  McReynolds, Brandeis, and Clarke.

Justice Holmes accepted the possibility that the First Amendment did not only prevent Congress  from exercising prior restraint (preemptively stopping speech). He said that the First Amendment  could also be interpreted to prevent the punishment of speech after its expression.

Yet, according to Holmes, “the character of every act depends upon the circumstances in which it is  done.” In the context of the U.S. effort to mobilize for entry into World War I, the Espionage Act’s  criminalization of speech that caused or attempted to cause a disruption of the operation of the military was not a violation of the First Amendment. According to Holmes, “when a nation is at  war, many things that might be said in time of peace are such a hindrance 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.”

Holmes held that some speech does not merit constitutional protection. He said that statements that  “create a clear and present danger” of producing a harm that Congress is authorized to prevent, fall  in that category of unprotected speech. Just as “free speech would not protect a man in falsely  shouting fire in a theatre and causing a panic,” the Constitution does not protect efforts to induce  the criminal act of resisting the draft during a time of war.

Section name: Impact

Schenck fashioned a new and important rule. It allowed Congress to authorize the punishment of  speech based on both its content and viewpoint. The “clear and present danger” test provided the  framework for future cases brought against independent and spirited speakers under both the  Espionage Act and similar state laws. Under the “clear and present danger” test, the government  typically won, and the speakers almost always lost. In later cases Justice Holmes argued that the best  way to counteract “bad” speech was through more and better speech. He called this the  “marketplace of ideas” rationale for freedom of speech, explaining that free debate was essential to a  democratic society.

The Court moved away from the “clear and present danger” test in a 1969 case called Brandenburg v.  Ohio, which involved a Ku Klux Klan member who gave a speech that was derogatory towards  African Americans and Jewish people while burning a cross in an open field. In  particular, Brandenburg v. Ohio fashioned the rule that now governs any action against a speaker  for their speech, requiring that the statements in question be 1) “directed at inciting or  producing imminent lawless action” and 2) “likely to incite or produce such action.” This and  later rulings were more protective of free speech rights than the “clear and present danger” test  established in Schenck.

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