The Bill of Rights and Civil Liberties

How are your rights defined and protected under the Constitution?

5.1 Introduction

In the summer of 1917, the United States was desperately trying to mobilize its army to fight in World War I. The government instituted a military draft to raise enough troops to go to war. It also launched a campaign to increase public support for the war effort. To limit dissent, Congress passed the Espionage Act. Among other things, this law stated that any effort to undermine the war effort would be considered a criminal act.

Many Americans were opposed to the war and the draft. One of the most outspoken opponents was Charles Schenck, the general secretary of the American Socialist Party. Schenck and his fellow socialists took a strong stand against the draft, which they regarded as an unconstitutional violation of individual rights. They believed that Americans should not be forced to serve in the military against their will.

To promote this view, Schenck organized a mass mailing of antidraft leaflets to young men in the Philadelphia area. These flyers called the draft “involuntary servitude” and urged draftees to call for its repeal.

Some recipients found the leaflets offensive and complained to authorities. Schenck was arrested and charged under the Espionage Act. At his trial, he was declared guilty of violating the law by conspiring to undermine the war effort. Schenck appealed to the Supreme Court, arguing that the Espionage Act violated his right to free speech.

In a unanimous opinion, written by Justice Oliver Wendell Holmes Jr., the Court held that Schenck’s conviction was constitutional. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,” Holmes wrote. In the Court’s view, Schenck’s publications created “a clear and present danger” to a nation engaged in war. “When a nation is at war,” wrote Holmes, “many things that might be said in time of peace ... will not be endured so long as men fight.” In such cases, the Court said, public safety should prevail over individual rights.

Schenck spent six months in prison for his crime. Ironically, by the time the Supreme Court decided the case, in March 1919, the war was over and the draft had been suspended. The Schenck v. United States decision did set a larger precedent, however. It allowed the courts to apply a “balancing test” in free speech cases, weighing the rights of individuals against the broader needs of society.

Next Section: 5.2 (Defining and Protecting Your Rights and Liberties)