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Scheck's propaganda was in defiance of the recently passed Espionage Act of 1917

Schenck v US Re-enaction

Schenck v US Re-enaction


The case was a landmark decision, setting the standard of "clear and present danger."

Argued: January 9, 1919

Decided: March 3, 1919

Schenk v US is a case brought before the US Supreme Court in 1919, regarding the idea of freedom of speech outlined by the First Amendment of the Constitution. It was brought forth to the court by Charles T. Schenck, when he was arrested and convicted of breaking the Espionage Age of 1917 during World War I. The case set the standard of "clear and present danger" for determining conviction for crimes of a similar manner in future court decisions.

Background on the CaseEdit

During World War I, Charles Schenck (who was a socialist) mailed pamphlets to men of draft age. In these pamphlets, Schenck urged the recipients to “not submit to [the government’s] intimidation”. He wanted draft age men to do things such as burn their draft cards and petition against the Conscription Act. Soon after, Schenck was arrested for conspiracy against the Espionage Act. Believing his arrest was in violation of his right to the First Amendment, Schenck sued the United States. The case started in the federal district court, which convicted Schenck originally. Schenck petitioned the ruling to the Supreme Court for review. The Supreme Court reviewed the case through the writ of certiorari, in which it was decided that the Supreme Court would hear the case.


Oral arguments took place on January 9th, 1919 and ended just a day later on January 10th, 1919. In the appellant’s argument, Schenck claimed that his arrest was in violation of his right to free speech. Since his pamphlets only encouraged peaceful actions, he believed his conviction was unjust. Also, Schenck argued that the Espionage Act was unconstitutional. Since Schenck believed the Espionage Act “abridged freedom of speech”, he therefore concluded that he shouldn’t be able to be convicted under its unconstitutional terms. On the flip side, the appellee’s argued that Schenck’s words and actions were not protected by the Free Speech Clause. The United States believed that since Schenck was trying to impair the recruitment process for the military, he was directly in violation of the Espionage Act. This Act, which was passed in 1917, prohibits the interference with military recruitment and operation and was intended to prevent United States’ enemies from gaining support during WWI and other times or war. Since Schenck encouraged men of draft age to burn their draft cards, the United States made the claim that this was an attempt to impair the military’s recruitment process.

The Court's DecisionEdit

After two months, the Supreme Court came back with their ruling. On March 3rd, 1919, the US Supreme Court ruled in favor of the appellee in a unanimous decision. It was the opinion of the court, written famously by Oliver Wendell Holmes Jr., that Schenck was not protected by the Free Speech Clause in the First Amendment. The reasoning provided was that his actions presented a “clear and present danger” to the United States by trying to encourage unlawful actions under the Espionage Act, such as obstructing the draft.

Impact on Future DecisionsEdit

The ruling also set the precedent that during wartime, actions tolerable during times of peace can become punishable. This precedent was used many times by the court, as their rulings in cases like Abrams v United States (1919) and Whitney v California (1927) reflected the “clear and present danger” idea.

External LinksEdit

PBS Article

OYEZ Article