A Clear and Present Danger (not Harrison Ford)

From today's lecture, here's a closer look at the case Schenck v. United States from all the way back in 1919.

This case involved Charles Schenck, who was the Secretary of the Socialist Party of America in 1917. Schenck was responsible for printing, distributing, and mailing leaflets that stated his party’s opposition to the draft during World War I. The leaflets were opposed to the draft and urged readers to “do not submit to intimidation” and compared the draft to an act of involuntary servitude. Schenck was subsequently indicted and convicted of violating the Espionage Act of 1917.

This decision was soon after met with an appeal by Schenck. He took his case to the Supreme Court, claiming that his First Amendment rights had been violated. The Supreme Court eventually ruled against Schenck (who would go on to spend 6 months in jail), stating that his conviction was constitutional due to the First Amendment not giving protection to speech that encouraged insubordination.

Justice Oliver Wendell Holmes, the majority opinion in this case, set forward the “clear and present danger” test.  He wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” According to Holmes, words that “are of such a nature to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”