Schenck v. United States

249 U.S. 47 (1919)

In this unanimous opinion by Justice Holmes, the Court upheld an Espionage Act conviction over First Amendment objections. The defendant had distributed an anti-war pamphlet that made arguments against the draft. This is its most famous passage:

[T]he character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [The] question in every case is whether the words used in such circumstances 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.

At one level, the Court’s incitement doctrine over the next 50 years concerns giving meaning to Holmes’ “clear and present danger” standard.

Note that I have visualized Schenck as the first case in the “bad tendency” line. This is based on two considerations. First, the text supports a connection to earlier bad tendency cases. In the final line of the opinion, Holmes writes: “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[.” But see Sullivan & Feldman, p. 23, n. 1. Second, the result is not protective of free speech. Holmes upheld the conviction here as in Frohwerk and Debs. As I visualize the doctrine, the bad tendency opinions constitute the “weak free speech” line in the doctrinal dialectic.

USEFUL LINKS

CourtListener (full opinion text)

Oyez (lineup, links)

Wikipedia (discussion)