Schenck v. the United States (1919)

During World War I, a major Constitutional issue was raised after Congress passed the Espionage (1917) and Sedition (1918) Acts.  Both measure made it illegal to spread “false” statements about the government and the war (just like the Alien and Sedition Acts from the War of 1812). Among others, Socialist Party leader Eugene V. Debs was famously sentenced to ten years for speaking out against the war.

In 1919, the laws were challenged in the Supreme Court case of Schenck v. the United States.  Charles Schenck was another Socialist Party leader who, among other anti-war activities, published some 15,000 pamphlets against the draft, created by the Selective Service Act of 1917.

That Act, passed by Congress because the American Army was far too small and unprepared should it be called upon to serve in Europe’s Great War, required all males 21 to 31 to register for military service (it was later extended to include males 18 to 45).  Of the men who served in World War I, a little more than half were draft, the rest having volunteered.  Unlike the draft during the Civil War, substitutes could not be sent in place of draftees.

For his anti-war efforts, Schenck was arrested and charged with violating the Espionage Act.  He was convicted and appealed his case to the United States Supreme Court.  His defense was that the Act was unconstitutional because it violated his First Amendment right to free speech.

In it’s ruling, the Supreme Court unanimously ruled that the Espionage Act did not violate the Constitution because free speech did not extend to acts of insubordination.  The ruling established the precedent of the “clear and present danger” test.  This means that government can limit one’s free speech if it can be established that it is a threat to national security.


Landmark Supreme Court Cases


BEFORE: Muller v. Oregon (1908)

AFTER: United States v. Butler (1936)


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