During WORLD War I, both Congress and state governments passed laws that restricted the right of free speech in order to ensure support for the war effort and to suppress what the government considered harmful dissent. Schenxk v. United States was a court case testing the constitutionality of the Espionage Act (1917) and its amendment under the SEDITION AcT (1918). These acts made it a crime to speak against the government, oppose the military draft, or act in any way that could be construed as giving aid and comfort to the enemy. Schenck was only one of a series of cases during the war that raised the specter of government suppression of civil liberties, including the rights to free speech and right of conscience. In Schenck as in Frohwerk v. United States (1919), Abrams v. United States (1919), and Gitlow v. New York (1924), the U. S. Supreme Court had to decide what was the extent and meaning of the First Amendment protection of free speech. Socialists who opposed U. S. entry into the war in Europe, radicals arrested under criminal syndicalism laws, German Americans who published in their native language, and militants supporting the Russian Revolution became the targets of state and federal prosecution. Challenging the laws were individuals who continued to advocate draft resistance, oppose bond sales, or criticize the nation’s entry into or pursuit of the war.
In the Schenck case, the defendants, members of the Socialist Party, had printed and mailed 15,000 pamphlets opposing CONSCRIPTION and American entry into the war. When the lower courts found them guilty, Schenck and
Baer appealed their convictions to the Supreme Court. Lawyers in the case argued for the absolute right of citizens to freedom of speech and conscience. Oliver Wendell Holmes, the chief justice, wrote the Court’s opinion, which decided in favor of the government. Arguing that the freedom of speech was not unlimited, Holmes used the analogy of a man crying “fire” in a crowded theater as an illustration of how speech acts could endanger communities. It was the context of speech that determined whether or not it was protected. The “clear and present danger” of the war, Holmes argued, made subversion out of free speech uttered in the name of individual conscience. Mailing anti-conscription pamphlets and condemning the government’s participation in the war were a threat to a nation at war.
Ironically, Justice Holmes, who wrote the majority opinion in Schenck, became within a few months a dissenting defender of First Amendment rights. Arguing against the majority in Abrams v. United States and subsequent cases, Holmes essentially defined the modern view of the First Amendment and civil liberties. He wrote that it was the “theory of our Constitution” that “the ultimate good desired is better reached by the free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” The nature of our experiment in democracy required us to be “eternally vigilant against attempts to check the expression of opinions that we loathe,” unless such speech represented an imminent threat.
Coming as it did at the end of a divisive war, Schenck had a sobering effect on the Left. The decision represented a conservative assessment of the powers of the state to override personal liberties and to restrict individual rights. At the same time, the case gave renewed importance to free speech struggles, as Gitlow v. New York (involving a New York criminal syndicalism statute) and a later case, Near v. Minnesota (on press censorship), took on questions of whether citizens were free to hold and promote unpopular political views and whether state and federal governments had the authority to silence dissenting voices.
Further reading: Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States (New York: Norton, 1979).
World History
