Schenck v. United States (1919) Definition

A U.S. Supreme Court decision upholding the Espionage Act of 1917 against a challenge under the free speech clause of the First Amendment. Charles Schenck was convicted of violating the Act for distributing leaflets urging men to resist being drafted during World War I. Schenck defended the charge on the ground that his activity was protected by the First Amendment free speech clause.

Justice Holmes, writing for the Court, disagreed. The free speech guarantee isn't absolute. While Schenck's activity might be protected at other times, national interests were different in a time of war. Holmes famously wrote that "the character of every act depends on the circumstances in which it is done. [Citation omitted.] The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic." Schenck v. United States, 249 U.S. 47, 51 (1919).

Schenck also announced the Court's "clear and present danger" test for determining when speech could be regulated, a test that is no longer used.