Question

What was the result of the Schenck decision?

Answer 1

It made striking against war industries illegal.

It stated that First Amendment rights do not apply in wartime.

It asserted the constitutionality of the draft.

It declared that the government must raise money for the war.

Answer 2

The Decision
Justice Oliver Wendell Holmes wrote the decision for the unanimous Supreme Court. It upheld (supported) Schenck's conviction, saying that it did not violate his First Amendment right to free speech.

Justice Holmes admitted that "in many places and in ordinary times" Schenck would have had a right to say everything that he said in his pamphlets. However, he said that how far a person's freedom of speech extends depends on the circumstances. "The most stringent protection of free speech," he said, "would not protect a man in falsely shouting fire in a theatre and causing a panic." Justice Holmes compared that circumstance to living in a nation at war. "When a nation is at war," he said, "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." During war, he thought, the government certainly has the power to prevent obstructions to recruitment. Therefore, it also has the power to punish someone who uses words that are proven to cause such obstructions. "The question in every case," said Holmes, "is whether the words 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."

The Impact of the Decision
Justice Holmes's decision expresses what is called the "clear and present danger test." This test has been used in many other cases. A famous lower court judge named Learned Hand once said that whenever the government claims that someone's speech poses a danger, judges must consider both the seriousness of the danger and the likelihood of it actually happening. For instance, suppose someone makes a speech calling the government a dictatorship and hinting that revolution would be a good idea. Overthrow is the most serious evil that can happen to the government. But that person may not be punished for his words unless they really do make this danger likely.

A number of judges have disapproved of the clear and present danger test. Some complained that the test made the decision about when speech may be limited "a matter of degree." Each case could result in a contradictory decision!

The most well-known opponent of the clear and present danger test was the late Justice Hugo Black. He objected to the very idea that the First Amendment's promises of freedom could be "balanced" against other governmental goals (such as wanting to prevent obstructions to recruiting soldiers). He thought that this balancing view of free speech destroyed freedom. Instead he proposed another approach to the First Amendment, called the absolutist view of free speech. People who support this view believe that the promise of freedom means that speakers may never be punished for what they say. They may, however, be punished for the place, time, or way in which they say it. So someone might be charged with disturbing the peace for using a loudspeaker to broadcast a speech at 4:00 in the morning, but the speaker would face no charges for the substance [content] of the speech.