Schenk v. United States
Constitutional amendments that give Americans rights under the law are often tested and defined by legal precedent. Such was the case of Schenk v. United States, a 1919 case that tested the validity and enforcement of the Espionage Act prohibiting various types of treason and aiding the enemy.
The case and others like it established the judicial fame of Justice Oliver Wendell Holmes Jr. who wrote eloquently of the difference between actual intent to cause harm and ideas that are protected by the constitution. In fact it was Holmes who protested the majority opinion in Baltzer v. United States, a case in which a couple signed a petition critical of their governor’s stance on World War I. The court set the Baltzer case aside when Holmes strongly opined that the plaintiff’s actions were a constitutionally protected idea rather than a constructive obstruction. But then Holmes went on to write opinions in several similar cases as follows.
In the Schenk case, a couple involved in the Socialist party printed and sent persuasive fliers to draft-age men urging them not to join the military and calling it voluntary servitude. They were tried under the Espionage Act and convicted.
The Supreme Court upheld their conviction, saying that in wartime such acts of defiance and free speech were not necessarily protected by the constitution. Holmes wrote the majority opinion, using the frequently-quoted line that a “man shouting ‘fire’ in a crowded theater” has no reasonable expectation of free speech rights due to the clear and present danger of such an act.
Similar cases included Abrams v. United States, which involved printing and distributing (throwing out an upper-story window) anti-government and anti-war leaflets, also prosecuted under the Espionage Act. Frohwerk v. United States was another, in which a newspaper publisher was jailed for speaking out against the war.
In the 1918 Debs v. United States case, Socialist labor organizer Eugene Debs was arrested and prosecuted for giving a speech in Ohio that was critical of the government. He was successfully prosecuted for attempting to obstruct the draft by urging people to not comply.