Schenck v. United States

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Schenck v. United States
Court Supreme Court of the United States
Date decided March 3, 1919
Overturned by
Brandenburg v. Ohio


During World War I, Schenck was a leader of the Socialist Party in Philadelphia, Pennsylvania.

In 1919, Schenck distributed leaflets to urge men to not join the United States Armed Forces. The leaflets contended that the 13th Amendment's prohibition on involuntary servitude provided a basis for non-compliance with the draft notice.

Procedural History

A federal prosecutor charged Schenck with conspiracy to violate the Espionage Act of 1917 (EA).


During wartime, does the distribution of written materials urging citizens to peacefully resist being drafted by making legal arguments pose a clear & present danger not protected by the 1st Amendment?


Schenck argued that distributing leaflets was expressive conduct protected by the First Amendment?


Yes. During wartime, the distribution of written materials urging peaceful resistance by making statements against the draft's legality poses a clear & present danger not protected by the 1st Amendment.


"Shouting fire in a crowded theater" is based on the opinion of Oliver Holmes in this case.