“Clear and Present Danger”

Schenck v. United States, and

The Suppression of Free Speech in Wartime

Evan Maniatis

HI-320-01 Citizen Nation

8 November 2022
 Introduction

“The question in every case is whether the words used 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” [1].

Aside from it being the name of a fantastic Harrison Ford movie, the phrase ‘clear and

present danger’ first appeared on the national stage in 1919 thanks to Supreme Court Justice

Oliver Wendell Holmes Jr., writing for a unified court following a unanimous decision favoring

the United States in Schenck v. United States, 249 U.S. 47 (1919). This landmark case

determined that in wartime, Congress has the authority to limit an individual’s right to free

speech right if it means protecting the government from any threat, obvious or perceived. The

decision in this case would be further used in the short time following, leading to further

Supreme Court decisions that would increasingly limit the acceptable level of free speech during

times of conflict. The case also brought the argument of free speech and protected free speech to

the forefront of American interest at the time, many debating what should be considered

‘protected’ under the law and what should not. What would come to be determined as a result of

the case’s ruling wouldn’t be immediately clear, as the First World War had ended by the time

the case had been brought to the Supreme Court, but what the decision made clear was that the

Court was in favor of allowing the federal government to limit free speech during wartime,

which opened the door to the possibility of more than just the right to free speech being restricted

in wartime.
 The Case to be Made

Schenck v. United States, 246 U.S. 47 is a Supreme Court case that was conducted and

concluded in early 1919. The case itself revolves around Charles Schenck and Elizabeth Baer,

both members and leaders in the Socialist Party, who were indicted for spreading leaflets to

recently enlisted soldiers that were drafted, making an argument that their service in the military

was a form of involuntary servitude, which would be a violation of the 13 th Amendment. The

leaflets also encouraged these soldiers to resist service, although doing so only through peaceful

means. Because these leaflets actively encouraged protesting military service, Schenck and Baer

were arrested and convicted under the Espionage Act of 1917, which created “criminal penalties

for anyone obstructing enlistment in the armed forces or causing insubordination or disloyalty in

military or naval forces” [2]. Given that the leaflets were precisely encouraging that, it seems

reasonable that Schenck would be convicted then, right? He disagreed and made an appeal to the

Supreme Court stating that his First Amendment Right was violated because of the Espionage

Act conviction, and that the Act itself was unconstitutional. The case was taken on and argued in

the court between January 9th and 10th, 1919, with the decision coming down on March 3rd [1].

A Decision is Reached

On March 3rd, Justice Holmes Jr.’s written opinion on the case was released, and the

information within it set legal precedent for the next 50 years regarding free speech protections.

The court had unanimously decided that Schenck’s Right to the First Amendment was not

violated, the Espionage Act of 1917 was not in-fact unconstitutional, and that Schenck’s

distribution of anti-service leaflets during a time of war could be prosecuted against under this
act because of the “clear and present danger” [1] it posed to the government and its ability to

prevent “substantive evils that Congress has a right to prevent” [1]. A direct result of this

decision was the ‘clear and present danger test,’ which is defined as, “saying that the printed or

spoken word may not be the subject of previous restraint or subsequent punishment unless its

expression creates a clear and present danger of bringing about a substantial evil. It is a standard

which is used to ascertain whether a particular speech is within the First Amendment right or

not” [3]. This decision was a crippling blow to the First Amendment and its protections during

wartime, in addition to being used as precedent for two more legal cases the Supreme Court

would be taking on mere months after Schenk v. United States. Frohwerk v. United States, 249

U.S. 204, and, Debs v. United States, 249 U.S. 211 were both cases that had outcomes decided on

the precedent set by the Schenck case. Each involved a proposed violation of free speech of

some form.

Eugene V. Debs, a socialist leader, was convicted under the Sedition Act of 1918 for

giving a speech that had outwardly no ill-intention towards the military or military recruitment.

This did not stop the federal government however, and he was arrested for giving the speech. He

appealed the conviction to the Supreme Court, who ruled against him, stating that the underlying

intention of the speech was to dissuade young men from serving in the military, which actively

hinders recruitment, making the speech an infraction covered by the Sedition Act. This decision

is widely considered a low-water mark for the protections of free speech during wartime, and by

many scholars considered to be one of the farthest stretches of reasoning for the decision given

down in U.S. Supreme Court history.

Jacob Frohwerk was convicted of conspiring to violate the Espionage Act of 1917

because of several articles published in the Missouri newspaper Staats Zeitung that opposed U.S.
involvement in World War I. His conviction also included 11 counts of using the words in these

articles to create disloyalty, mutiny, and refusal of duty in the military, all charges covered by the

Espionage Act. This case was the true first advisory against the clear and present danger test;

there was no evidence whatsoever that conclusively proved Frohwerk was telling anyone to not

fight in the military. He was simply critical of the government’s policies and decision to enter the

war, an opinion that Justice Holmes himself admitted would possibly be protected during

peacetime, “it may be that all this might be said or written even in time of war in circumstances

that would not make it a crime. We do not lose our right to condemn either measures or men

because the country is at war” [4]. Regardless of how unreasonable ruling against Frohwerk

would’ve been, the Court ruled in favor of the United States, calling back to the words of Justice

Holmes in Schenck v. United States, “[w]hen a nation is at war 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” [1].

A Dangerous Precedent is Set

These two cases, along with Schenck v. United States, set a legal precedent that the

federal government can limit free speech during times of war to a degree that would be

considered unconstitutional during times of peace. The Espionage and Sedition Acts are the

vessels for this limitation, and Schenck, Debs, and Fromwerk v. United States set it in practice

for the decades to come. However, these rulings were not free from scrutiny; in the time that

followed the decisions, the debate of real free speech and protected free speech continued. Were

Schenck’s leaflets, Frohwerk’s articles, and Debs’ speech protected? The Supreme Court did not

think so, but many Americans did, especially in the cases of Debs and Frohwerk. They were not

outwardly encouraging dissention amongst the ranks of the military, or promoting desertion, or
avoiding volunteering for service; they simply were stating their distaste for the war. How could

this not be protected free speech then? It wasn’t because we were at war when these instances of

‘dissention’ occurred. Like mentioned before, the actions of Frohwerk could’ve been considered

free speech during peacetime, but not during wartime. Debs simply gave a speech that, when

interpreted as such, was an anti-war speech against military service. That interpretation is a far

stretch though. The only one that you could make a more reasonable case against is Schenck,

who was prosecuted because he promoted peaceful protest of military service amongst draftees,

which goes against the Espionage Act. Even this, however, could be considered acceptable

during peacetime. So, what does this mean for the First Amendment and free speech? What it

means is that Schenck v. United States further affirms the Supreme Court’s stance in support of

the restriction of free speech by the federal government during wartime. The examples of

unprotected free speech provided by Schenck, Debs, and Frohwerk would be used as the legal

basis for the ‘clear and present danger’ test and the next 50 years of First Amendment violations

brought to the Supreme Court involving any kind of military hinderance.

Conclusion

Schenck v. United States is possibly one of the most important legal decisions that you’ve

likely never heard of. It created the ‘clear and present danger’ test that shaped the legal landscape

of freedom of speech cases for the next five decades, before its eventual replacement in 1969 by

the ‘imminent lawless action’ test. It reaffirmed the Supreme Court’s support of the Federal

Government’s ability to restrict free speech beyond its peacetime limit during times of conflict

and opened the door to the possibility of other individual rights being restricted or even

suspended during wartime. The case is considered a landmark, even though it may not be for the

right reasons. Perhaps its most enduring legacy is that of Justice Oliver Wendell Holmes Jr., who
ruled in favor of the United States in the case, but slowly became more and more dissenting

towards the precedent’s set against restricting free speech. During his time as a Supreme Court

Justice, he changed his mind; he went from being a supporter of free speech restrictions to a

champion of free speech. The decisions in Schenck, Debs¸and, Frohwerk changed his perception

of the First Amendment, causing him to eventually change his mind set against it. He would go

on to be the biggest supporter of free speech on the Court for the duration of his tenure. The man

saw the error of his ways and changed his mind; that is something worth admiring and sorely

lacking in our modern world.

[1] Jr., Justice Oliver Wendell Holmes. 1919. "SCHENCK v. UNITED STATES. BAER v.
SAME." Legal Information Institute, Cornell Law School. January - March Argued Jan. 9
- 10, Decided March 3. Accessed November 8, 2022.
[Link]

[2] David Asp, Updated by Deborah Fisher. 2022. Espionage Act of 1917 (1917). Encyclopedia.
Murfreesboro, August. [Link]
act-of-1917#:~:text=The%20Espionage%20Act%20of%201917%20prohibited
%20obtaining%20information%2C%20recording%20pictures,advantage%20of%20any
%20foreign%20nation.

[3] Legal Information Institute, Cornell Law School. 2022. Clear and Present Danger.
Encyclopedia. Ithaca, November.
[Link]
%20and%20present%20danger,bringing%20about%20a%20substantial%20evil.

[4] Parker, Richard. 2022. Frohwerk v. United States (1919). Encyclopedia. Murfreesboro,
August. [Link]

[5] Dow, Douglas C. 2022. Debs v. United States (1919). Encyclopedia. Murfreesboro, August.
[Link]

[6] Asp, David. 2022. Schenck v. United States (1919). Encyclopedia. Murfreesboro, August
[Link]

[7] Healy, Thomas. 2014. The Great Dissent: How Oliver Wendell Holmes Changed His Mind
and Changed the History of Free Speech in America. London: Picador.