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	Schenck v. US (1919)

During World War I, Charles T. Schenck, an opponent of the war, 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.


	Are Schenck's actions protected by the free speech clause of the First Amendment?



		US Supreme Court Justice Oliver Wendell Holmes


		Holmes, speaking for a unanimous Court, concluded that Schenck was 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.



		TAs a result of the 9-0 decision, Charles Schenck spent 10 years in prison. The requirement to establish "clear and present danger" test was later weakened, and the less restrictive "bad tendency" test was adopted in Whitney v. California in 1927. For a full summary of this case, go to: http://www.oyez.org/cases/1901-1939/1918/1918_437/