Schenck v. United States

Following is the case brief for Schenck v. United States, United States Supreme Court, (1919)

Case summary for Schenck v. United States:

  • Schenck mailed out circulars criticizing draft supporters and informing draftees of their rights to oppose.
  • In response, Schenck was indicted for violating the Espionage Act (the Act) which made it a crime to interfere with military success or promote the success of its enemies during wartime.
  • Schenck appealed his conviction, claiming the Act violated his First Amendment rights.
  • The Supreme Court of the United States held that after taking into consideration the country’s at war status, Schenck’s speech was not protected and his First Amendment rights were not violated.

Schenck v. United States Case Brief

Statement of the facts:

Upon entering the first World War, Congress passed an Act making it a crime to “willfully make or convey false reports or false statements” with intent to interfere with military success or “promote the success of its enemies” during wartime. In addition, the law prohibited willfully obstructing recruiting or enlisting services of the U.S., imposing penalties of up to twenty years imprisonment and $10,000. Schenck was indicted and charged with conspiracy to violate the Act after he mailed circulars criticizing the draft to draftees. In response, Schenck was convicted in federal district court for attempting to obstruct recruitment and cause insubordination.

Procedural History:

Schenck appealed his conviction to the United States Supreme Court, claiming the Act violated his First Amendment rights.

Rule of Law or Legal Principle Applied:

Speech protected by the First Amendment may be prohibited when used in circumstances and in a manner to create a clear and present danger of substantive evils, that Congress has the authority to prevent.

Issue and Holding:

Does the Espionage Act, which prohibits certain forms of otherwise protected speech, during times of war violates the First Amendment? No.


The Supreme Court affirmed the decision of the federal district court.


Schenck mailed his literature to inform draftees of their right to assert opposition to the draft in addition to criticizing supporters of the draft. Arguably, the literature would not have been sent unless it was intended to prevent draftees from joining the draft.

Schenck Claims that under the First Amendment, he has a right to mail such literature. Although this argument would most likely have been upheld if the nation were not at war, it is struck down due to the countries wartime status. As a result, it can be stated that the character of the act depends on the surrounding circumstances in which it was done.   Congress has the right to protect against substantive evils, and the Court must ask whether the words used, when considering the circumstances, create a clear and present danger.

Here, Schenck’s speech intended to incite draftees to obstruct the draft and can be viewed as a clear and present danger since the nation is at war. Congress has the power to raise and maintain military forces. As a result, the prevention of the military draft is one of the substantive evils Congress may prevent.


Schenck v. United States drew a distinction on the First Amendment right to freedom of speech, which depends upon the nation’s war status. It also outlined the rights of Congress in regards to its power to raise and maintain the military.

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