Schenck v. United States, 249 U.S. 47 (1919)
MR. JUSTICE HOLMES delivered the opinion of the court.
This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15,
1917, c. 30, § 3, 40 Stat. 217, 219, by causing and attempting
to cause insubordination, &c., in the military and
naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States,
when the United States was at war with the German Empire, to-wit, that the defendants willfully conspired to
have printed and circulated to men who had been called and accepted for military service under the Act of May
18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction. The
count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth.
The second count alleges a conspiracy to commit an offence against the United States, to-wit, to use the mails
for the transmission of matter declared to be nonmailable by Title XII, § 2 of the Act of June 15, 1917, to-wit,
the above mentioned document, with an averment of the same overt acts. The third count charges an unlawful
use of the mails for the transmission of the same matter and otherwise as above. The defendants were found
guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any
law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued
some other points also of which we must dispose.
It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was
concerned in sending the documents. According to the testimony, Schenck said he was general secretary of
the Socialist party, and had charge of the Socialist headquarters from which the documents were sent. He
identified a book found there as the minutes of the Executive Committee of the party. The book showed a
resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in use, to
be mailed to men who had passed exemption boards, and for distribution. Schenck personally attended to the
printing. On August 20, the general secretary's report said "Obtained new leaflets from printer and started work