Schenck v. United States


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Schenck v. United States,

case decided in 1919 by the U.S. Supreme Court. During World War I, Charles T. Schenck produced a pamphlet maintaining that the military draft was illegal, and was convicted under the Espionage Act of attempting to cause insubordination in the military and to obstruct recruiting. In his opinion for the Supreme Court, Justice Oliver Wendell HolmesHolmes, Oliver Wendell,
1841–1935, American jurist, associate justice of the U.S. Supreme Court (1902–32), b. Boston; son of the writer Oliver Wendell Holmes.
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 rejected the argument that the pamphlet was protected by the First Amendment to the U.S. Constitution. He argued that speech may be suppressed if it creates a clear and present danger that it will produce a "substantive evil" which can be legally prevented. Subsequent decisions would limit the clear and present danger test to violent actions, and not the mere advocacy of ideas. Indeed, Holmes himself agreed that the 1919 decision had been abused by the federal government in cases where political dissidents were prosecuted.
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References in periodicals archive ?
in Schenck v. United States, "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." He waved away the First Amendment consideration.
Tracing the evolution of free speech law from its roots in post-World War I decisions beginning with Schenck v. United States, (13) Strauss notes that modern free speech doctrine is a study of evolution, whereby the Court makes decisions based upon the particularized circumstances of a controversy, legal principles derived from past cases, and policy decisions appropriate for the time.
(1.) Harry Kalven, Jr., A Worthy Tradition 133 (Harper & Row, 1988) citing Schenck v. United States, 249 U.S.