‘Clear And Present Danger’ Exception Established

1919

In Schenck v. United States, the U.S. Supreme Court, in an opinion by Justice Oliver Wendell Holmes, upholds the conviction of Socialist Charles Schenck for conspiracy to violate the Espionage Act by attempting to distribute thousands of antiwar leaflets to U.S. servicemen. While acknowledging that the First Amendment under normal circumstances might protect Schenck’s activities, the Court holds that in special circumstances, such as wartime, speech that poses a “clear and present danger” can be restricted. The Court likens the ideas expressed in Schenck’s leaflets to “falsely shouting fire in a theatre and causing a panic.”

A few days later, in another opinion by Holmes, the Court will uphold Socialist Eugene V. Debs’ conviction, finding that his speech also poses a “clear and present danger” of undermining war recruitment and is not protected by the First Amendment.