SCHENCK v. UNITED STATES

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Case Basics
Docket No. 
437
Petitioner 
Schenck
Respondent 
United States
Decided By 
White Court (1916-1921)
Opinion 
249 U.S. 47 (1919)
Argued 
Thursday, January 9, 1919
Decided 
Monday, March 3, 1919
Term:
Location: Socialist Headquarters
Facts of the Case 

During World War I, Schenck mailed circulars to draftees. The circulars suggested that the draft was a monstrous wrong motivated by the capitalist system. The circulars urged "Do not submit to intimidation" but advised only peaceful action such as petitioning to repeal the Conscription Act. Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment.

Question 

Are Schenck's actions (words, expression) protected by the free speech clause of the First Amendment?

Conclusion 
Decision: 9 votes for United States, 0 vote(s) against
Legal provision: 1917 Espionage Act; US Const Amend 1

Holmes, speaking for a unanimous Court, concluded that Schenck is not protected in this situation. The character of every act depends on the circumstances. "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." During wartime, utterances tolerable in peacetime can be punished.

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SCHENCK v. UNITED STATES. The Oyez Project at IIT Chicago-Kent College of Law. 17 June 2013. <http://www.oyez.org/cases/1901-1939/1918/1918_437>.
SCHENCK v. UNITED STATES, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1901-1939/1918/1918_437 (last visited June 17, 2013).
"SCHENCK v. UNITED STATES," The Oyez Project at IIT Chicago-Kent College of Law, accessed June 17, 2013, http://www.oyez.org/cases/1901-1939/1918/1918_437.