“Clear and Present Danger”: Schenck v. United States and the Suppression of Free Speech in Wartime
Evan Maniatis, Fall 2022
“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 they will bring about the substantive evils that Congress has a right to prevent” .
Aside from it being the name of a fantastic Harrison Ford movie, the phrase ‘clear and present danger’ first appeared on the national stage in 1919 thanks to Supreme Court Justice Oliver Wendell Holmes Jr., writing for a unified court following a unanimous decision favoring the United States in Schenck v. United States, 249 U.S. 47 (1919). This landmark case determined that in wartime, Congress has the authority to limit an individual’s right to free speech right if it means protecting the government from any threat, obvious or perceived. The decision in this case would be further used in the short time following, leading to further Supreme Court decisions that would increasingly limit the acceptable level of free speech during times of conflict. The case also brought the argument of free speech and protected free speech to the forefront of American interest at the time, many debating what should be considered ‘protected’ under the law and what should not. What would come to be determined as a result of the case’s ruling wouldn’t be immediately clear, as the First World War had ended by the time the case had been brought to the Supreme Court, but what the decision made clear was that the Court was in favor of allowing the federal government to limit free speech during wartime, which opened the door to the possibility of more than just the right to free speech being restricted in wartime.
The Case to be Made
Schenck v. United States, 246 U.S. 47 is a Supreme Court case that was conducted and concluded in early 1919. The case itself revolves around Charles Schenck and Elizabeth Baer, both members and leaders in the Socialist Party, who were indicted for spreading leaflets to recently enlisted soldiers that were drafted, making an argument that their service in the military was a form of involuntary servitude, which would be a violation of the 13th Amendment. The leaflets also encouraged these soldiers to resist service, although doing so only through peaceful means. Because these leaflets actively encouraged protesting military service, Schenck and Baer were arrested and convicted under the Espionage Act of 1917, which created “criminal penalties for anyone obstructing enlistment in the armed forces or causing insubordination or disloyalty in military or naval forces” . Given that the leaflets were precisely encouraging that, it seems reasonable that Schenck would be convicted then, right? He disagreed and made an appeal to the Supreme Court stating that his First Amendment Right was violated because of the Espionage Act conviction, and that the Act itself was unconstitutional. The case was taken on and argued in the court between January 9th and 10th, 1919, with the decision coming down on March 3rd .
A Decision is Reached
On March 3rd, Justice Holmes Jr.’s written opinion on the case was released, and the information within it set legal precedent for the next 50 years regarding free speech protections. The court had unanimously decided that Schenck’s Right to the First Amendment was not violated, the Espionage Act of 1917 was not in-fact unconstitutional, and that Schenck’s distribution of anti-service leaflets during a time of war could be prosecuted against under this act because of the “clear and present danger”  it posed to the government and its ability to prevent “substantive evils that Congress has a right to prevent” . A direct result of this decision was the ‘clear and present danger test,’ which is defined as, “saying that the printed or spoken word may not be the subject of previous restraint or subsequent punishment unless its expression creates a clear and present danger of bringing about a substantial evil. It is a standard which is used to ascertain whether a particular speech is within the First Amendment right or not” . This decision was a crippling blow to the First Amendment and its protections during wartime, in addition to being used as precedent for two more legal cases the Supreme Court would be taking on mere months after Schenk v. United States. Frohwerk v. United States, 249 U.S. 204, and, Debs v. United States, 249 U.S. 211 were both cases that had outcomes decided on the precedent set by the Schenck case. Each involved a proposed violation of free speech of some form.
Eugene V. Debs, a socialist leader, was convicted under the Sedition Act of 1918 for giving a speech that had outwardly no ill-intention towards the military or military recruitment. This did not stop the federal government however, and he was arrested for giving the speech. He appealed the conviction to the Supreme Court, who ruled against him, stating that the underlying intention of the speech was to dissuade young men from serving in the military, which actively hinders recruitment, making the speech an infraction covered by the Sedition Act. This decision is widely considered a low-water mark for the protections of free speech during wartime, and by many scholars considered to be one of the farthest stretches of reasoning for the decision given down in U.S. Supreme Court history.
Jacob Frohwerk was convicted of conspiring to violate the Espionage Act of 1917 because of several articles published in the Missouri newspaper Staats Zeitung that opposed U.S. involvement in World War I. His conviction also included 11 counts of using the words in these articles to create disloyalty, mutiny, and refusal of duty in the military, all charges covered by the Espionage Act. This case was the true first advisory against the clear and present danger test; there was no evidence whatsoever that conclusively proved Frohwerk was telling anyone to not fight in the military. He was simply critical of the government’s policies and decision to enter the war, an opinion that Justice Holmes himself admitted would possibly be protected during peacetime, “it may be that all this might be said or written even in time of war in circumstances that would not make it a crime. We do not lose our right to condemn either measures or men because the country is at war” . Regardless of how unreasonable ruling against Frohwerk would’ve been, the Court ruled in favor of the United States, calling back to the words of Justice Holmes in Schenck v. United States, “[w]hen a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right” .
A Dangerous Precedent is Set
These two cases, along with Schenck v. United States, set a legal precedent that the federal government can limit free speech during times of war to a degree that would be considered unconstitutional during times of peace. The Espionage and Sedition Acts are the vessels for this limitation, and Schenck, Debs, and Fromwerk v. United States set it in practice for the decades to come. However, these rulings were not free from scrutiny; in the time that followed the decisions, the debate of real free speech and protected free speech continued. Were Schenck’s leaflets, Frohwerk’s articles, and Debs’ speech protected? The Supreme Court did not think so, but many Americans did, especially in the cases of Debs and Frohwerk. They were not outwardly encouraging dissention amongst the ranks of the military, or promoting desertion, or avoiding volunteering for service; they simply were stating their distaste for the war. How could this not be protected free speech then? It wasn’t because we were at war when these instances of ‘dissention’ occurred. Like mentioned before, the actions of Frohwerk could’ve been considered free speech during peacetime, but not during wartime. Debs simply gave a speech that, when interpreted as such, was an anti-war speech against military service. That interpretation is a far stretch though. The only one that you could make a more reasonable case against is Schenck, who was prosecuted because he promoted peaceful protest of military service amongst draftees, which goes against the Espionage Act. Even this, however, could be considered acceptable during peacetime. So, what does this mean for the First Amendment and free speech? What it means is that Schenck v. United States further affirms the Supreme Court’s stance in support of the restriction of free speech by the federal government during wartime. The examples of unprotected free speech provided by Schenck, Debs, and Frohwerk would be used as the legal basis for the ‘clear and present danger’ test and the next 50 years of First Amendment violations brought to the Supreme Court involving any kind of military hinderance.
Schenck v. United States is possibly one of the most important legal decisions that you’ve likely never heard of. It created the ‘clear and present danger’ test that shaped the legal landscape of freedom of speech cases for the next five decades, before its eventual replacement in 1969 by the ‘imminent lawless action’ test. It reaffirmed the Supreme Court’s support of the Federal Government’s ability to restrict free speech beyond its peacetime limit during times of conflict and opened the door to the possibility of other individual rights being restricted or even suspended during wartime. The case is considered a landmark, even though it may not be for the right reasons. Perhaps its most enduring legacy is that of Justice Oliver Wendell Holmes Jr., who ruled in favor of the United States in the case, but slowly became more and more dissenting towards the precedent’s set against restricting free speech. During his time as a Supreme Court Justice, he changed his mind; he went from being a supporter of free speech restrictions to a champion of free speech. The decisions in Schenck, Debs¸and, Frohwerk changed his perception of the First Amendment, causing him to eventually change his mind set against it. He would go on to be the biggest supporter of free speech on the Court for the duration of his tenure. The man saw the error of his ways and changed his mind; that is something worth admiring and sorely lacking in our modern world.
 Jr., Justice Oliver Wendell Holmes. 1919. “SCHENCK v. UNITED STATES. BAER v. SAME.” Legal Information Institute, Cornell Law School. January – March Argued Jan. 9 – 10, Decided March 3. Accessed November 8, 2022. https://www.law.cornell.edu/supremecourt/text/249/47.
 David Asp, Updated by Deborah Fisher. 2022. Espionage Act of 1917 (1917). Encyclopedia. Murfreesboro, August. https://www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917#:~:text=The%20Espionage%20Act%20of%201917%20prohibited%20obtaining%20information%2C%20recording%20pictures,advantage%20of%20any%20foreign%20nation.
 Legal Information Institute, Cornell Law School. 2022. Clear and Present Danger. Encyclopedia. Ithaca, November. https://www.law.cornell.edu/wex/clear_and_present_danger#:~:text=The%20clear%20and%20present%20danger,bringing%20about%20a%20substantial%20evil.
 Parker, Richard. 2022. Frohwerk v. United States (1919). Encyclopedia. Murfreesboro, August. https://mtsu.edu/first-amendment/article/460/frohwerk-v-united-states.
 Dow, Douglas C. 2022. Debs v. United States (1919). Encyclopedia. Murfreesboro, August. https://mtsu.edu/first-amendment/article/289/debs-v-united-states.
 Asp, David. 2022. Schenck v. United States (1919). Encyclopedia. Murfreesboro, August https://www.mtsu.edu/first-amendment/article/193/schenck-v-united-states.
 Healy, Thomas. 2014. The Great Dissent: How Oliver Wendell Holmes Changed His Mind and Changed the History of Free Speech in America. London: Picador.