LAD #26: Schenk v. United States
Schenck v. United States in 1919 was a United States Supreme Court decision concerning the question of whether the defendant possessed a First Amendment right to free speech against the draft during World War I. The defendant, Charles Shenck, a Socialist, circulated a flyer to recently drafted men. The flyer, which cited the Thirteenth Amendment provision against "involuntary servitude," exhorted the men to "assert their opposition to the draft," which it described as a moral wrong. The circulars proposed peaceful resistance, 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. The Court, in a unanimous opinion written by Justice Oliver Wendel Holmes, Jr., held that Schenck's criminal conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "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." In other words, the court held, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime. This goes along with the saying "shouting fire in a crowded theatre," a misquotation of Holmes's view that "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." In the end, Schenck was found guilty and was sent to prison by a 9-0 decision.