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 ?
The 1919 Supreme Court case Schenck vs. United States determined that the First Amendment, while prohibiting the government from limiting freedom of speech, did not provide protection for dangerous speech.
Justice Holmes pointed out in his famous decision in Schenck vs. United States, "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 will bring about the substantive evils that Congress has a right to prevent." To which we might amend, or that an aroused American public opinion has a right to prevent.