Schenck v. United States, 249 U.S. 47 (1919)

Notable Items:

See Gitlow v. New York (1925); Dennis v. United States (1951); and Brandenburg v. Ohio (1969).

The Road to Brandenburg by John F. Wirenius, Drake Law Review Vol. 43 No. 1, 1994
Rethinking the Clear and Present Danger Test by David R. Dow and R. Scott Shieldes, Indiana Law Journal Vol. 73 Issue 4, 1998.

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• According to the testimony, Schenck said he was general secretary of the Socialist party, and had charge of the Socialist headquarters from which the documents were sent.
• He identified a book found there as the minutes of the Executive Committee of the party.
• The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck personally attended to the printing.
• Without going into confirmatory details that were proved, no reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about.

Procedural History:

• This is an indictment in three counts.
• The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by causing and attempting to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war, ....
• ... that the defendants willfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction.
• The second count alleges a conspiracy to commit an offence against the United States, to-wit, to use the mails for the transmission of matter declared to be nonmailable by Title XII, § 2 of the Act of June 15, 1917, to-wit, the above mentioned document, with an averment of the same overt acts.
• The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above.
• The defendants were found guilty on all the counts.

Rationale

Holmes Majority Opinion (White, McKenna, Day, Devanter, Pitney, McReynolds, Brandeis, Clarke)

• We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights.
• The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. [emphasis added]
• 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. [(partial) suspension of rights during time of war]
• The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction.
• If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United States, 245 U. S. 474, 245 U. S. 477. [Bad Tendency Test]
• The words [in the statute of 1917] are "obstruct the recruiting or enlistment service," and it might be suggested that they refer only to making it hard to get volunteers.
• But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise.
• A full description of the rationale is available below

Holmes Majority Full Argument (White, McKenna, Day, Devanter, Pitney, McReynolds, Brandeis, Clarke)

• See Material Facts
• See Procedural History
• It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears.
• The contrary is established. Adams v. New York, 192 U. S. 585; Weeks v. United States, 232 U. S. 383, 232 U. S. 395, 232 U. S. 396; Johnson v. United States, 228 U. S. 457; Holt v. United States, 218 U. S. 245, 218 U. S. 252, 218 U. S. 253.
• It [the document] said "Do not submit to intimidation," but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act.
• Of course, the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out.
• We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights.
• But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U. S. 194, 195 U. S. 205, 195 U. S. 206.
• It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 221 U. S. 439.
• The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. [emphasis added]
• 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. [(partial) suspension of rights during time of war]
• The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction.
• If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United States, 245 U. S. 474, 245 U. S. 477.
• The words [in the statute of 1917] are "obstruct the recruiting or enlistment service," and it might be suggested that they refer only to making it hard to get volunteers.
• But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise.
• Judgments affirmed.
• The core of the rationale is available above