Schenck+v+United+States+_1919_ - * B 'k Radicalism and the...

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Unformatted text preview: * B 'k Radicalism and the First Amendment MM Schenck v. United States The Court’s contribution to the reaction against the so-called “Red Scare” following World War I was comparable to its role in the sub- version of Negro rights following Reconstruction. With the excep- tion of a few lonely voices on the bench, the Court emphatically en- dorsed repressive measures against radical political activities. In future free speech controversies, Holmes’s doctrine was utilized for both libertarian and repressive goals. Holmes’s opinion for a unani~ mcus bench in the case below tried to reconcile the government’s need to guard against subversion with the requirements of the First Amendment. The result was his famous “clear and present danger” test. 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, . . . 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 wilfully 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 con- spiracy to commit an offence against the United States, to—wit, to use the mails for the transmission of matter declared to be non-mailable by Title XII, § 2 of the Act of June 15, 1917, to—wit, the above mentioned docu— ment, 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 249 U.S. 47 (1919) 324 Schenck v. United States 325 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 addressing envelopes” &c.; and there was a resolve that Comrade Schenck be allowed $125 for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand ' printed. There were files of the circular in question in the inner office which he said were printed on the other side of the one sided circular and were there for. distribution. Other copies were proved to have been sent through the mails to drafted men. Without going into confirmatory details that were proved, no reasonable man could doubt that the defend— ant Schenck was largely instrumental in sending the circulars about. As to the defendant Baer there was evidence that she was a member of the Executive Board and that the minutes of its transactions were hers. The argument as to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the seriousness of the real defence. . . . The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the Conscription Act and that a conscript is little better than a convict. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said “Do not submit to intimidation,” but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed “Assert Your Rights.” It stated reasons for alleging that any one violated the Constitution when he refused to recog- nize “your right to assert your opposition to the draft,” and went on “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.” It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to 326 Radicalism and the First Amendment foreign shores to shoot up the peOple of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness de- serves, &c., &c., Winding up “You must do your share to maintain, support and uphold the rights of the people of this country.” Of course the docu— ment would not have been sent unless it had been intended to have some eilect, and we do not see what eifect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point. But it is said, suppose that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Tfiwo of the strongest expressions are said to be quoted respectively from well-known public men. . . . We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent pro- tection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the eilect of force. . . . 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 Con— gress has a right to prevent. It is a question of proximity and degree. When 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. It seems to be admitted that if an actual obstruc- tion of the recruiting service were proved, liability for words that pro- duced that eifect might be enforced. The statute of 1917 in § 4 punishes conspiracies to obstruct as well as actual obstruction. If the act, (speak- ing, or circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. . . stud—u . ...
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This note was uploaded on 02/21/2012 for the course 512 404 taught by Professor Clemens during the Spring '12 term at Rutgers.

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Schenck+v+United+States+_1919_ - * B 'k Radicalism and the...

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