Schenck v. United States, 249 U.S. 47; 39 S. Ct. 247; 63 L. Ed. 470 (1919)
Facts—Schenck, the general secretary of the Socialist Party, sent out about 15,000 leaflets to men who had been called to military service, urging them to oppose the Conscription Act. He was indicted on three counts under the Espionage Act of 1917 for (1) conspiracy to cause insubordination in the military service of the United States, (2) using the mails for the transmission of matter declared to be nonmailable by the Espionage Act, and (3) the unlawful use of the mails for the transmission of the same matter as mentioned above.
Question—Does the Espionage Act of 1917 violate the freedom of speech and the press guaranteed by the First Amendment?
Decision—No, not when applied to the suppression of speech that constitutes a “clear and present danger” of evils that Congress has a right to prevent.
Reasons—J. Holmes (9–0). The defendants claimed that the tendency of the circular to obstruct the draft was protected by the First Amendment. That would be true in normal circumstances, but the character of every act must be judged according to the circumstances in which it was done. What must be ascertained is whether the words are used in such circumstances as “to create a clear and present danger” that would have brought about substantive evils that Congress had a right to prevent. It is a question of proximity and degree. Many things that may be of no consequence in time of peace may not be said when a nation is at war. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” The statute punishes conspiracies to obstruct as well as actual obstruction. There are no grounds for saying that success alone makes the action a crime.