Schenck v. United States (1919)

Argued: January 9–10, 1919

Decided: March 3, 1919

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.

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Schenck’s flier also implored its recipients “to write to your Congressman and tell him you want the [conscription] law repealed.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.

Issue

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

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.”

Classifying Arguments Activity—Answer Key Schenck v. United States (1919)

After reading the background, facts, issue, constitutional provisions, and federal statute, read each  of the arguments below. These arguments come from the briefs submitted by the parties in this case. If  the argument supports the petitioner, Schenck, write S on the line after the argument. If the argument  supports the respondent, the United States, write a US on the line after the argument. Work in your  groups. When you have finished, determine which argument for each side is the most persuasive and be  ready to give your reasons.

Arguments 

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

2. 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.” US

3. 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. S
4. 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. S
5. 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. US
6. 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). S
7. 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. US

Schenck classifying arguments student handout Word doc

Answer key Schenck classifying arguments PDF

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