Schenck v. United States, 100 years later

First Amendment, Intellectual Freedom Issues

By: Lisa M. Rand

Why should library workers be interested in a hundred-year-old U.S. Supreme Court case? In Schenck v. the United States, and the Debs case that was decided only a week later, we see that government policies restricting the expression of unpopular views open the door to repressive enforcement tactics. This was true during WWI, and we see it today in international news when journalists who are critical of a government are expelled, arrested, or killed. As professionals concerned with freedom of thought and expression, library workers should be aware of history’s lessons. Protecting the expression of unpopular views, especially those critical of government bodies, is critical to the health of democracy.

What were these cases about and why did they make a lasting impact? On March 3 and March 10, 1919, the Supreme Court handed down two decisions related to the Espionage Act of 1917, Schenck and Debs. The Espionage Act was passed two months after the United States entered World War I, and its provisions were intended to protect the war effort. While prosecuting spies and saboteurs might be justifiable in theory, the Espionage Act resulted in the arrest of many individuals with dissenting points of view. In time of war, should citizens who hold pacifist views have a right to express those views? According to the history books, that depends.

The Espionage Act declared in section 3 that “whoever when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.” If you held an anti-war view, and you spoke out against the draft during wartime, this law states that you could be punished.

Charles Scheck and Elizabeth Baer had distributed leaflets calling for peaceful protest against the draft. They were convicted of attempting to incite insubordination and obstruct recruitment. The Court unanimously upheld the conviction, because their conduct had been unlawful according to the Espionage Act. In his opinion, Justice Oliver Wendell Holmes famously compared distributing leaflets to yelling “Fire!” in a crowded theatre. From this case we gained the “clear and present danger” test, indicating that speech is not protected when it creates a danger that Congress has a right to prevent.

Eugene Debs was an outspoken labor movement leader, co-founder of the Industrial Workers of the World, and by 1916 had run four times as the Socialist Party’s presidential candidate (he ran a fifth time in 1920). On June 16, 1918, Debs gave a public speech against the war at a Socialist gathering in Canton, Ohio. The Socialist anti-war position rested in part on the view that ordinary people, whose voices were not represented in the government, were being used by wealthy power holders. By speaking to a large assembly with an antiwar message, Debs was arrested and accused of attempting to obstruct recruitment and enlistment. He appealed his conviction on First Amendment grounds, but the Court upheld the conviction, citing the similarity to the recent Schenck case. They decided that his speech was incitement to break the law, and therefore unprotected.

These are landmark cases from a period in history when political dissent, especially a socialist viewpoint, was highly suspect. The cases remains potent because in a free society people need to be able to protest against government actions without fear of prosecution. While we have a right to peaceful protest, where do we permit lines to be drawn? If the government is legislating against thought or point of view, that will inherently disable protest.

To the relief of future free speech advocates, eight months after Debs, Oliver Wendell Holmes wrote a notable dissenting opinion in Abrams, a dissent that created the opening for true free speech protection. In the Abrams case, five Russian-born men were prosecuted for producing a series of pamphlets that discouraged the war effort. Holmes acknowledged that their right to free speech has been trod upon. He wrote, “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” Law professor Thomas Healy has written a book describing the intellectual and philosophical work undertaken by Holmes after the Debs case.

What should we remember of Schenck and the other cases of the Sedition Act era? They held views that were unpopular, and perceived by the government to be dangerous. Was the Espionage Act really necessary, and should they have been prosecuted? Sometimes the voices we most need to hear are voices that the government would rather silence.


Lisa RandLisa M. Rand is the youth services coordinator at Boyertown Community Library in southeastern Pennsylvania, a role that carries a special interest in protecting youth access to diverse programs and materials. She exercises her commitment to equity and access for everyone by serving on the Intellectual Freedom Committee of the Pennsylvania Library Association. Lisa developed a passion for Constitutional Law and First Amendment issues while at Simmons College, and continued her studies at the New School in New York City. Whenever possible she travels, visiting libraries and walking in the footsteps of favorite fictional characters. Find her on Twitter @lisa_m_rand.

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