Is the distribution of anti-draft literature during wartime protected under the First Amendment's guarantee of free speech?

During World War I, Charles Schenck and Elizabeth Baer were charged with violating the Espionage Act of 1917. As the general secretary of the Socialist party, Schenck oversaw the printing and distribution of approximately 15,000-16,000 leaflets. Baer, a member of the party's Executive Board, was also involved in this effort. The leaflets were distributed to men who had been drafted into military service.

The content of these leaflets strongly opposed conscription, characterizing it as despotic and a violation of the 13th Amendment. They urged readers to "Assert Your Rights" and resist the draft, though the authors claimed to advocate only peaceful measures. The defendants were accused of conspiring to cause insubordination in the military and obstruct recruitment efforts through the distribution of these materials. As a result, Schenck and Baer faced charges under the Espionage Act for their actions during the wartime period.

The government indicted the defendants on three counts related to espionage and unlawful use of the mails. The District Court for the Eastern District of Pennsylvania tried the case, and the jury found the defendants guilty on all counts. Following their convictions, the defendants appealed to the Supreme Court, challenging the verdicts on First Amendment grounds.

(Holmes, J.)

No. The distribution of anti-draft literature during wartime is not protected under the First Amendment's guarantee of free speech. The First Amendment does not provide absolute protection for all forms of expression, particularly when that expression poses a clear and present danger to national security or public safety. During times of war, the government has a compelling interest in maintaining military recruitment and readiness. Speech that intentionally obstructs this process creates a substantive evil that Congress has the right and duty to prevent. The context of wartime justifies greater restrictions on speech, especially when that speech is calculated to hinder the war effort. The nature and circumstances of the expression, not merely its content, determine its legality. In evaluating the limits of free speech, courts must consider the proximity and degree of danger created by the words used, as well as the intent behind their dissemination. The Espionage Act's prohibition on obstructing recruitment applies to both volunteer enlistment and conscription, recognizing the critical importance of maintaining military strength during times of national crisis. This interpretation balances the fundamental right to free speech against the equally vital need to protect national security and ensure the effective functioning of the military during wartime. The clear and present danger test provides a framework for assessing when speech crosses the line from protected expression to unlawful action, allowing for necessary limitations on speech that would otherwise undermine crucial government functions and public safety.