Schenck v. United States

The Court upheld an Espionage Act conviction, with Justice Holmes articulating the clear and present danger test for speech.

Overview

Charles Schenck, a socialist party official, circulated leaflets urging draftees to resist World War I conscription. Justice Holmes, for a unanimous Court, affirmed the conviction, reasoning that the character of every act depends on its circumstances, and that words creating a clear and present danger of substantive evils Congress may prevent can be punished. The most stringent protection of free speech, he wrote, would not protect a man falsely shouting fire in a theater and causing a panic. Schenck established the first modern speech test, later tightened in Brandenburg, and remains a touchstone of First Amendment debate.