Case Overview

Legal Principle at Issue

Whether the Espionage Act of 1917 violates the First Amendment. Whether leafletting to urge Americans to resist the draft during wartime is protected by the First Amendment.


The Supreme Court upheld the trial court’s conviction of the defendants under the Espionage Act.


Socialist Charles Schenck was charged with conspiracy to violate the Espionage Act of 1917 for distributing leaflets which called the draft involuntary servitude and called for a boycott of the draft. The act made it a crime to “attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States[.]”

Importance of Case

This opinion was the first articulation of the “clear and present danger” test. The Supreme Court held, “Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment, may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done.”

In this opinion, Justice Holmes infamously wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

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