"The character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." — Justice Oliver Wendell Holmes
After the United States entered World War I in 1917, the U.S. Congress instituted a military draft when it passed the Selective Service Act. In order to protect the war effort, Congress also passed the Espionage Act of 1917. Among other things, this law made it a crime to cause or attempt to cause insubordination in the military and naval forces or to obstruct the recruitment or enlistment of persons into the military service of the United States.
Charles Schenck, the General Secretary of the Socialist Party, opposed United States participation in World War I. He was arrested for violating the Espionage Act after 15,000 leaflets urging resistance to the draft were sent to men who had been drafted. The leaflets were traced to Socialist Party headquarters. On the front of the leaflet the first section of the Thirteenth Amendment to the U.S. Constitution, which prohibits slavery or involuntary servitude, was printed. The leaflet asserted that the Selective Service Act violated the idea embodied in the amendment and that a draftee was little better than a convict. In impassioned language, it suggested that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of “Wall Street’s chosen few.” It urged draftees not to submit to intimidation but, at least in form, confined itself to urging peaceful measures such as petitioning for repeal of the Selective Service Act. Part of the leaflet urged draftees to “Assert Your Rights.” It alleged that an individual violated the Constitution when he or she refused to recognize “your rights to assert your opposition to the draft.” It stated: “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.” It described even silent consent to the draft law as helping to support an infamous conspiracy. The leaflet concluded: “You must do your share to maintain, support, and uphold the rights of the people of this country.”
Although Schenck denied responsibility for sending the leaflets, he was found guilty in a U.S. District Court. He appealed his conviction and claimed that the leaflets should be protected as free speech.
The Court considered the following question:
Is a leaflet sent to draftees when the nation is at war urging them peacefully to resist the draft protected by the freedom of speech and press of the First Amendment?
A unanimous Supreme Court upheld Schenck’s conviction. Justice Oliver Wendell Holmes wrote for the Court: “We admit that in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done (emphasis added). The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. 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 (emphasis added) that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When 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.”
History of the Supreme Court — Schenck v. United States