No, their speech was not protected in this situation. Justice Holmes explained that free speech has limits. As he famously said, you can't just falsely shout 'Fire!' in a crowded theater and cause a panic. What you're allowed to say depends on the situation. Since the country was at war, the government had a right to prevent people from messing up the war effort. The court believed these flyers created a 'clear and present danger' to the country's ability to raise an army, so punishing Schenck was constitutional.

No, it's not okay. The Court said that what Schenck and Baer did was dangerous to the country during wartime. Even though they might have been allowed to say those things during peace, it was too harmful while the country was fighting a war. The Court compared it to yelling 'fire' in a crowded theater when there isn't a fire, which isn't protected by free speech. They said that when words create a serious and immediate danger of causing really bad things that the government is trying to prevent, they aren't protected by the First Amendment. It doesn't matter if the bad things actually happen; it's about how dangerous the words are in that situation.

No, it's not okay. We said that what Schenck and Baer did was dangerous to the country during wartime. Even though they might have been allowed to say those things during peace, it was too harmful while the country was fighting a war. We compared it to yelling 'fire' in a crowded theater when there isn't a fire, which isn't protected by free speech. We also said that when words create a serious and immediate danger of causing really bad things that the government is trying to prevent, they aren't protected by the First Amendment. It doesn't matter if the bad things actually happen; it's about how dangerous the words are in that situation.

<?xml version="1.0" encoding="utf-8"?> <opinion type="majority"> <author id="b94-13"> Mr. Justice Holmes </author> 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, c. 30, § 3, 40 Stat. 217, 219, by causing and attempt *49 ing to cause insubordination, &amp;c., in the military and nával 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 tlie document set forth. The second count alleges a conspiracy to commit an offence against the United States, to-wit, to use the mails for the transr mission of matter declared to be non-mailable by Title XII, § 2 of the Act of June 15, 1917, to-wit, the above mentioned document, 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 áll the counts. They set up the First Amendment to the Constitution forbidding Congress 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 printe4 on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribu tion. Schenck personally attended to the printing, Qrj . *50 August 20 the general secretary’s report said “Obtained new leaflets from printer and started work addressing envelopes” &amp;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 defendant 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. It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears. The contrary is established. Adams v. New York, 192 U. S. 585; Weeks v. United States, 232 U. S. 383, 395, 396. The search warrant did not issue against the defendant but against the Socialist headquarters at 1326 Arch Street and it would seem that the documents technically were not even in the defendants’ possession. See Johnson v. United States, 228 U. S. 457. Notwithstanding some protest in argument the notion that evidence even directly proceeding from the defendant in a criminal proceeding- is excluded in all pases by the Fifth Amendment is plainly unsound. Holt v. United States, 218 U. S. 245, 252, 253. The document in question upon its first printed side recited the first section of the Thirteenth Amendment, sáid that the idea embodied in it was violated by the Conscription Act and that a conscript is little better.than a *51 convict. In impassioned language it intimated.that conscription was despotism in its worst form arid 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 recognize “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 foreign shores to shoot up the. people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &amp;c., &amp;c., winding up “You must do your share to maintain, support and uphold the rights of the people of this country.” Of course" the document would not have been sent unless it had been intended to have some effect, and we do not see what effect j 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 that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the *52 plain purpose, as intimated in Patterson v. Colorado, 205 U. S. 454, 462. 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. Aikens v. Wisconsin, 195 U. S. 194, 205, 206. The most stringent protection 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 effect of force. Gompers v. Bucks Stove &amp; Range Co., 221 U. S. 418, 439. 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. 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 obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in § 4 punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done áre the same, we perceive no ground for saying that success' alone warrants making the act a crime. Goldman v. United States, 245 U. S. 474, 477. Indeed that case might be said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to ádd a few words. It was' not argued that a conspiracy to obstruct the draft was neb-within-uñe words of the Act of 1917. The *53 words are “obstruct the recruiting o.r enlistment service,” and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put. as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 10, 1918, c. 75, 40 Stat. 553, of course, does not affect the present indictment and would not, even if the former act had been repealed. Rev. Stats., § 13. Judgments affirmed. </opinion>

—"[t] he 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 most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic"; and in Frohwerk

—speech is not protected if there is' clear and present danger that it will bring about the substantive evils that Congress has a right to prevent'.

—explaining the First Amendment "does not protect a man from an injunction against uttering words that may have all the effect of force

When 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

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops

We did not consider application of the First Amendment to speech restrictions other than prior restraints until 1919

The so-called "clear and present danger" doctrine lays down the requirement that before an utterance can be penalized by government it must, ordinarily, have occurred "in such circumstances [or have been] of such nature as to create a clear and present danger" that it would bring about "substantive evils" within the power of the government to prevent.

Zechariah Chafee, Jr., Free Speech in the United States (Cambridge, Mass.: Harvard University Press, 1941), pp. 51-52. 13.

—the First Amendment is not absolute and that it does not permit one to yell "Fire" in a crowded theater.

No, the conviction under the Espionage Act does not violate the defendants' First Amendment rights. While in ordinary times the defendants' speech would be protected, the character of every act depends upon the circumstances in which it is done. The First Amendment's protection of free speech is not absolute. The question 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. During wartime, speech that might be permissible in peacetime can become a punishable hindrance to the national war effort. The defendants' circular was intended to influence draftees to obstruct the draft, an evil Congress is empowered to prevent, thus posing a clear and present danger to the United States' recruiting and enlistment service.

Yes. The Court held that the defendants' actions were not protected by the First Amendment because the distribution of the documents posed a clear and present danger to the United States' war effort. The character of an act depends on the circumstances in which it is done. While the defendants' speech might have been permissible during peacetime, it posed a hindrance to the nation's war effort that could not be tolerated. The Court reasoned that, just as falsely shouting 'fire' in a crowded theater is not protected speech, words that create a clear and present danger of bringing about substantive evils that Congress has a right to prevent are not protected by the Constitution. The question is one of proximity and degree. The Court found that if the defendants' act, its tendency, and their intent were to obstruct the draft, the fact that they did not succeed does not make the act any less a crime.

No. We hold that the defendants' actions were not protected by the First Amendment because the distribution of the documents posed a clear and present danger to the United States' war effort. The character of an act depends on the circumstances in which it is done. While the defendants' speech might have been permissible during peacetime, it posed a hindrance to the nation's war effort that could not be tolerated. We reason that, just as falsely shouting 'fire' in a crowded theater is not protected speech, words that create a clear and present danger of bringing about substantive evils that Congress has a right to prevent are not protected by the Constitution. The question is one of proximity and degree. We find that if the defendants' act, its tendency, and their intent were to obstruct the draft, the fact that they did not succeed does not make the act any less a crime.

Schenck v. United States

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