US Supreme Court


Schenck v. United States, 249 U.S. 100 (1919)

Schenck v. U.S., is a landmark  First Amendment Free Speech case. It established the "clear and present danger test" for deciding Free Speech cases.

The case dealt with Schenck, who was responsible for printing and distributing material that encouraged men to resist the draft. The court held that the pamphlets were not protected under the constitution, because they were distributed in war time.

The unanimous opinion stated:

[T]he character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin,195 U.S. 194, 205, 206. 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 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.

The evil that Congress had a right to prevent here, was the obstruction of recruiting to the military. Therefore, because if heeded the speech would achieve the purpose of violating the relevant statute, which prohibited conspiracies to obstruct new recruits, the speech was unlawful, and therefore Schenck's First Amendment rights were not violated.

Though this test was later replaced with the "imminent lawless action test," it is noteworthy for creating the proposition that the same speech that is protected under certain circumstances, may be properly prohibited under other circumstances.

Additionally, the opinion creates the proposition that shouting "Fire!" in a crowded theater, when there is no real threat, is not lawful, and therefore potentially punishable.

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