In Schenck v. United States (1919), the Supreme Court reviewed the conviction of a man charged with distributing provocative flyers to draftees during World War I. The Court asserted that words can create a "clear and present danger" that Congress may constitutionally prohibit. The ruling has since been overturned, but the Schenck case is still significant because it created the context-based balancing tests that determine when a state can constitutionally limit an individual's First Amendment free speech rights.
Charles Schenck distributed thousands of flyers to American servicemen drafted to fight in World War I. Schenck' claimed that the draft was involuntary servitude forbidden by the Thirteenth Amendment outlawing slavery. Schenck urged draftees to petition for repeal of the draft. The U.S. government charged Schenck with violating the Espionage Act. Schenck responded that the Espionage Act violated the First Amendment, which forbids Congress from passing laws limiting 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 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." In peacetime such flyers were harmless speech, but in times of war they were acts of national insubordination.
According to the decision, First Amendment rights to free speech are limited. Context determines the limits. The Court affirmed Schenck's conviction, finding that his speech created a clear and present danger of insubordination in wartime.
The decision created a balancing test that allowed the Supreme Court to assess free speech challenges against the state's interests on a case-by-case basis. In 1969, the Supreme Court decision in the Brandenburg v. Ohio case 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. The "imminent lawless action" test was still in use in 2006.
Source: Schenck v. U.S. (1919)
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