Heimlich History: Schenck v. United States

Introduction

• Supreme Court case required for AP Government curriculum
• Focus on Schenck v. United States

Facts of the Case

• Espionage Act of 1917: Outlawed hindrances to military recruitment during WWI
• Charles Schenck: Member of the Socialist Party in Philadelphia
  • Opposed military draft
  • Distributed pamphlets encouraging resistance to the draft
  • Argued draft was a form of involuntary servitude (13th Amendment)
• Arrest: Schenck broke the Espionage Act by distributing 15,000 pamphlets
• Trial: Case appealed and reached the Supreme Court

Constitutional Principle

• First Amendment: Right to free speech
• Schenck argued the Espionage Act violated his First Amendment rights
• Government argued Schenck's actions were not protected speech

Supreme Court Decision

• Unanimous decision against Schenck
• Ruled his speech was not protected as it actively encouraged men to avoid the draft
• Oliver Wendell Holmes' Opinion:
  • "Clear and present danger" test
  • Comparison: Shouting "fire" in a crowded theater causing panic
  • Words creating a clear and present danger are not protected

Importance of the Case

• Established a standard for silencing speech during wartime
• Holmes' opinion: Government can infringe on speech during war
• Clear and Present Danger Test:
  • Evaluates if words create a substantial evil Congress has the right to prevent

Evolution of Speech Protection Standards

• Brandenburg Test: Superseded "clear and present danger" test
  • Focuses on intent and likelihood to incite lawless action
  • Speech protection if not intended to incite lawless activity
  • Sets a higher bar for government to silence speech

Conclusion

• Schenck v. United States set precedent for evaluating speech protection
• Importance in understanding standards for government restriction on speech
• Encouragement to review material for exam success