Does the First Amendment protect speech that is intended to and tends to obstruct military recruitment and the draft during wartime from criminal liability under the Espionage Act of 1917?

Charles Schenck and Elizabeth Baer (defendants) were officers of the Socialist Party; Schenck was the general secretary and had charge of the party's headquarters in Philadelphia. During World War I, the Executive Committee resolved to print and distribute 15,000 leaflets to men who had been called and accepted for military service under the draft. Schenck personally attended to the printing, was allowed $125 for mailing the leaflets, and copies were mailed to drafted men. One side of the leaflet recited the Thirteenth Amendment, asserted that the Conscription Act violated it, and described conscription as despotism and a monstrous wrong in the interest of Wall Street. That side said "Do not submit to intimidation," though it confined itself in form to peaceful measures such as petitioning for repeal of the act. The other side, headed "Assert Your Rights," urged readers to assert their opposition to the draft. Documents were seized from the Socialist headquarters under a search warrant. Baer was a member of the Executive Board, and the minutes of its transactions were hers. The United States was at war with the German Empire.

The defendants were indicted in the United States District Court for the Eastern District of Pennsylvania on three counts: conspiracy to violate the Espionage Act of 1917 by causing insubordination in the military and naval forces and obstructing recruiting and enlistment; conspiracy to use the mails to transmit non-mailable matter; and unlawful use of the mails to transmit the same matter. The jury found both defendants guilty on all counts. The defendants brought the case to the United States Supreme Court by writ of error, asserting First Amendment, Fourth Amendment, and Fifth Amendment objections and challenging the sufficiency of the evidence.

(Holmes, J.)

No. The First Amendment does not protect speech used in circumstances that create a clear and present danger of bringing about substantive evils Congress has the right to prevent, and the defendants' leaflets, circulated to draftees during wartime, fell within that rule. The convictions are affirmed.

The evidence sufficiently proved that Schenck was largely instrumental in sending the circulars, and the evidence supported the conspiracy findings against both defendants. The documents seized under a valid search warrant were admissible. Adams v. New York, 192 U.S. 585; Weeks v. United States, 232 U.S. 383; Holt v. United States, 218 U.S. 245, rejected the notion that the Fourth and Fifth Amendments exclude such evidence.

The leaflet would not have been sent unless intended to have an effect, and the only effect it could be expected to have on persons subject to the draft was to influence them to obstruct its operation. In ordinary times, the defendants would have been within their constitutional rights in saying what the circular said. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.

The question in every case is whether the words 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 the war effort that their utterance will not be endured and no court could regard them as protected.

The statute punishes conspiracies to obstruct as well as actual obstruction. If the act, its tendency, and the intent are the same, success alone does not warrant making the act a crime. Goldman v. United States, 245 U.S. 474. The words "obstruct the recruiting or enlistment service" cover the draft, since recruiting means gaining fresh supplies for the forces by draft as well as by volunteering.