AKR asked in Politics & GovernmentGovernment · 1 decade ago

What is the Schenck v. United States case?

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  • 1 decade ago
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    Schenck v. United States, 249 U.S. 47 (1919), was a United States Supreme Court decision concerning the question of whether the defendant possessed a First Amendment right to free speech against the draft during World War I. Ultimately, the case served as the founding of the "clear and present danger" rule.

    The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "[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." In other words, the court held, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime.

    In the opinion's most famous passage, Justice Holmes sets out the "clear and present danger" standard:

    "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."

    This case is also the source of the phrase "shouting fire in a crowded theatre," a misquotation of Holmes' view that "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

    As a result of the 9-0 decision, Charles Schenck spent six months in prison.

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