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| Schenck v. United States, Nos. 437, 438,
SUPREME COURT OF THE UNITED STATES, March 3, 1919,
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Overview: While the United States was at war, defendants circulated leaflets that urged men to refuse to submit to the draft into military service. For attempting to obstruct military recruitment, defendants were convicted of crimes pursuant to the Espionage Act, 40 Stat. 217, 219. Defendants contended that the distribution of the leaflets was activity protected by the First Amendment. The Court admitted that in many places and in ordinary times, the distribution of the leaflets would have been within defendants' constitutional rights. The Court explained, however, that the character of protected speech depended upon the circumstances in which it was expressed. For example, the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case was whether the words were used in such circumstances and were of such nature as to create a clear and present danger that they would bring about the substantive evils that Congress had a right to prevent. Because Congress was within its power to punish activity intended to obstruct the draft, the conviction of defendants did not violate the First Amendment.
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