In Schenck v. United States (1919) , the Supreme Court reviewed the conviction of a man charged with distributing provocative flyers to draftees of World War I. The Court asserted that, in certain contexts, words can create a "clear and present danger" that Congress may constitutionally prohibit. While the ruling has since been overturned, Schenck is still significant for creating the context-based balancing tests used to determine when a state can constitutionally limit an individual's free speech rights under the First Amendment.
Charles Schenck distributed thousands of flyers to American servicemen recently drafted to fight in World War I. Schenck's flyers claimed that the draft was "involuntary servitude" outlawed by the Constitution's Thirteenth Amendment (outlawing slavery), and that the war itself was motivated by capitalist greed. Schenck urged draftees to petition for repeal of the draft. The U.S. government charged Schenck with violating the recently enacted Espionage Act. Schenck responded that the Espionage Act violated the First Amendment, which forbids Congress from making any law curbing the freedom of speech.
The Supreme Court upheld Schenck's conviction and ruled that the Espionage Act did not violate the First Amendment. The Court maintained that Schenck had fully intended to undermine the draft. The Court then argued that "the character of every act depends upon the circumstances in which it is done." While in peacetime such flyers could be read as harmless speech, in times of war they could be understood as acts of national insubordination.
According to the decision, free speech rights granted by the First Amendment are not limitless, and context determines the limits. The Court upheld the Espionage Act and affirmed Schenck's conviction, finding that his speech had created a clear and present danger of insubordination in wartime.
The decision resulted in a pragmatic "balancing test" that allowed the Supreme Court to assess on a case-by-case basis free speech challenges against the state's interests. In 1969, the Court in Brandenburg v. Ohio replaced the "clear and present danger" test with the "imminent lawless action" test, which protects a broader range of speech. This test states that the government may only limit speech that incites unlawful action sooner than the police can arrive to prevent such action. As of 2006, the "imminent lawless action" test is still used.
Source: Schenck v. U.S. (1919)
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