The Schenck V. United States issue began when socialists Charles Schenck and Elizabeth Baer handed out leaflets that said the draft violated the 13th Amendment, which outlaws involuntary servitude. They hoped to urge the public to disobey the draft peacefully. However, Schenck was charged with conspiracy to violate the Espionage Act of 1917, and he argued that such a conviction violated his 1st Amendment right.
Justice Oliver Wendall Holmes responded by saying that during wartime, the courts must obey the government regardless of constitutional rights, a rule that is part of the "clear and present danger doctrine." He compared handing out the leaflets to shouting "Fire!" in a crowded theatre, which is not permitted under the 1st Amendment. In fact, handing out the leaflets posed as a disruption to the drafting process, and therefore it was not deemed legal.
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| Justice Oliver Wendall Holmes |
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| In Gitlow V. New York, Benjamin Gitlow distributed 16,000 copies of a document that called for a communist revolution in the United States and urged labor strikes/class action to take over the state's power. However, similar to Schenck V. United States, free speech was limited in this situation (it was a "clear and present danger") and Gitlow was arrested for violating New York's "criminal anarchy" law (made it a felony to encourage overthrowing a government by force/violence). |
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