Schenck v. United States (1919) | Definition

Doc's CJ Glossary by Adam J. McKee


Course: Introduction / Criminal Law

Schenck v. United States (1919) was a landmark SCOTUS decision in which the Court first articulated the clear and present danger test for judging the constitutionality of statutes that impinge on First Amendment rights.

Schenck v. United States (1919) is a landmark case that marked the beginning of the Court’s analysis of the First Amendment right to free speech. The case arose out of the context of World War I and the government’s attempts to suppress anti-war sentiments. Charles Schenck, a member of the Socialist Party, printed and distributed leaflets urging men to resist the draft. He was arrested and charged with violating the Espionage Act of 1917, which made it a crime to interfere with the military or obstruct the draft.

At trial, Schenck argued that the Espionage Act violated his First Amendment right to free speech. The trial court convicted Schenck, and the case was appealed to the Supreme Court. In a unanimous decision, the Court upheld Schenck’s conviction, holding that the Espionage Act was a constitutional exercise of Congress’s war powers and that Schenck’s leaflets presented a clear and present danger to the war effort.

In its opinion, the Court famously stated that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” The Court went on to explain that the First Amendment does not protect speech that poses a clear and present danger to national security.

The clear and present danger test established in Schenck has been applied in numerous cases involving free speech and other First Amendment rights. The test requires a court to determine whether the gravity of the evil, discounted by its probability, justifies such invasion of free speech as is necessary to avoid danger. This test is a balancing act between the government’s interest in protecting national security and an individual’s right to free speech.

Schenck v. United States remains a significant case in First Amendment jurisprudence. The clear and present danger test has been refined over the years, but the basic principle that speech can be restricted when it poses a danger to the country has been consistently upheld. The case serves as a reminder that while the First Amendment protects free speech, that protection is not absolute, and restrictions on speech may be necessary for certain circumstances.

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Last Modified: 04/08/2023


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