Schenck V. United States - The Court's Decision

The Court's Decision

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, "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." In other words, the court held, the circumstances of wartime permit greater restrictions on free speech than would be allowed during peacetime.

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

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. 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.

The phrase "shouting fire in a crowded theater" was also paraphrased from this portion of the Court's opinion.

Charles Schenck consequently spent six months in prison.