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Prison for Preaching the Constitution - Legal Case Series - Schenck v U.S.

In 1919, the Supreme Court allowed Charles Schenck to remain in prison for advocating that the military draft was unconstitutional and that citizens should defend their constitutional rights. This was the era of World War I, and concerns about socialism, communism, and the war gripped the hearts and minds of many Americans.

It didn’t help Schenck’s case that he was the General Secretary of the Executive Committee of the Socialist Party in Philadelphia. America was at war, literally, with principles related to socialism, and soldiers, who had been drafted to fight, were dying to defend America’s freedom.

The Socialist Party had printed and distributed 15,000 leaflets to the public. However, the Espionage Act of 1917 forbade any conduct that undermined the war efforts. The Socialist Party took the position in the leaflets that the 13th Amendment, which prohibited involuntary servitude and slavery, had made it so that the government did not have the power any longer to draft or conscript soldiers, as that was effectively the same as involuntary servitude or slavery.

The leaflets contained strong language encouraging Americans to stand for their rights and work to end the draft. Statements in the leaflets included:

“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.”

“You must do your share to maintain, support and uphold the rights of the people of this country.”

The Supreme Court summarized the leaflets by stating:

“[The leaflet] 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.” Schenck v. United States, 249 U.S. 47, 51 (1919).

Ultimately, the Supreme Court refused to recognize that the law putting Schenck in jail was in conflict with the Constitution. The Supreme Court stated:

“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 & 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.” Schenck v. United States, 249 U.S. 47, 52 (1919).

At this period of time, the Supreme Court allowed constitutional rights to be bent because the nation was at war, and there was a “clear and present danger” associated with the speech. While this case was overturned decades later in favor of a more restrictive precedent, this case stands for the principle that periods of threat to the country produce a less serious enforcement of constitutional rights.

In other words, there is more at play in constitutional interpretation than the text alone. The Court was looking at the morality associated with sending young men to die while others worked to undo the thing that was necessary (based on the prevailing narrative or belief of the day) to keep America as a country. Essentially, if something is viewed as destroying the foundation of America itself, courts do not feel bound to follow the Constitution as there is a basic prevailing notion that the Constitution was built to create and establish America, not to allow it to be destroyed.


At Believe, we are promoting the Constitution through education and discussing the relevant issues. These small highlights are part of a bigger monthly discussion, with discussions taking place in person and online. The discussions are free and are aimed at empowering through education. You can view the relevant and upcoming discussions at our page on The Law under the "Constitution Series".

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