Schenck v. United States Baer v. Same

Decision Date03 March 1919
Docket Number438,Nos. 437,s. 437
CourtU.S. Supreme Court

Messrs. Henry John Nelson and Henry Johns Gibbons, both of Philadelphia, Pa., for plaintiffs in error.

Mr. John Lord O'Brian, of Buffalo, N. Y., for the United States.

Mr. Justice HOLMES delivered the opinion of the Court.

This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, tit. 1, § 3, 40 Stat. 217, 219 (Comp. St. 1918, § 10212c), by causing and attempting to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendant wilfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, c. 15, 40 Stat. 76 (Comp. St. 1918, §§ 2044a-2044k), a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offense against the United States, to-wit, to use the mails for the transmission of matter declared to be non-mailable by title 12, § 2, of the Act of June 15, 1917 (Comp. St. 1918, § 10401b), to-wit, the above mentioned document, with an averment of the same overt acts. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also of which we must dispose.

It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the documents. According to the testimony Schenck said he was general secretary of the Socialist party and had charge of the Socialist headquarters from which the documents were sent. He identified a book found there as the minutes of the Executive Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck personally attended to the printing. On August 20 the general secretary's report said 'Obtained new leaflets from printer and started work addressing envelopes' &c. and there was a resolve that Comrade Schenck be allowed $125 for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand printed. There were files of the circular in question in the inner office which he said were printed on the other side of the one sided circular and were there for distribution. Other copies were proved to have been sent through the mails to drafted men. Without going into confirmatory details that were proved, no reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about. As to the defendant Baer there was evidence that she was a member of the Executive Board and that the minutes of its transactions were hers. The argument as to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the seriousness of the real defence.

It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears. The contrary is established. Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575; Weeks v. United States, 232 U. S. 383, 395, 396, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. The search warrant did not issue against the defendant but against the Socialist headquarters at 1326 Arch street and it would seem that the documents technically were not even in the defendants' possession. See Johnson v. United States, 228 U. S. 457, 33 Sup. Ct. 572, 57 L. Ed. 919, 47 L. R. A. (N. S.) 263. Notwithstanding some protest in argument the notion that evidence even directly proceeding from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly unsound. Holt v. United States, 218 U. S. 245, 252, 253, 31 Sup. Ct. 2, 54 L. Ed. 1021.

The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the conscription act and that a conscript is little better than a convict. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said, 'Do not submit to intimidation,' but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed 'Assert Your Rights.' It stated...

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812 cases
    • United States
    • U.S. District Court — Eastern District of Virginia
    • January 21, 1958
    ...? 141 et seq. were upheld even though the situation did not meet the clear and present danger test laid down in Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; and in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137, the clear and present danger test was......
  • Crownover v. Musick
    • United States
    • California Supreme Court
    • May 1, 1973
    ...S.Ct. 997, 6 L.Ed.2d 105; Roth v. United States, Supra, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Schenck v. United States (1919) 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470.) 12 In Konigsberg, the court explained this principle: 'Throughout its history this Court has consistently r......
  • Younger v. Smith
    • United States
    • California Court of Appeals Court of Appeals
    • January 23, 1973
    ...370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569, in 1962. Even before then, the very case which announced it, Schenck v. United States, 249 U.S. 47, 50--51, 39 S.Ct. 247, 63 L.Ed. 470, did not apply it; the test was finessed in Gitlow v. New York, 268 U.S. 652, 668--671, 45 S.Ct. 625, 69 L.Ed. 1......
  • First Unitarian Church of Los Angeles v. Los Angeles County
    • United States
    • California Supreme Court
    • April 24, 1957
    ...create a clear and present danger that they will bring about the substantive evils' sought to be repressed. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470. However, in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 868, 95 L.Ed. 1137, the Supreme Court, rev......
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1 firm's commentaries
  • FARA , J'Accuse!
    • United States
    • Mondaq United States
    • April 26, 2022
    ...statements or taking certain actions to hinder that could hinder the United States' war effort during World War I); Schenk v. U.S., 249 U.S. 47 (1919) (upholding the application of the Espionage Act against a defendant who mailed leaflets to U.S. military draftees that argued that the draft......
121 books & journal articles
  • Rewriting Near v. Minnesota: Creating a Complete Definition of Prior Restraint - Michael I. Meyerson
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 52-3, March 2001
    • Invalid date men fight and that no Court could regard them as protected by any constitutional right." Id. at 716 (quoting Schenck v. United States, 249 U.S. 47, 52 (1919)). 26. Id. 27. Id. 28. Id. 29. Id. at 715. 30. 4 William Blackstone, Commentaries on the Laws of England (1769). 31. Id. at 151-52.......
  • Inverting the First Amendment.
    • United States
    • University of Pennsylvania Law Review Vol. 149 No. 4, April 2001
    • April 1, 2001
    ...into dissent in Abrams v. United States, 250 U.S. 616 (1919). He had recently written the majority opinions in Schenck v. United States, 249 U.S. 47 (1919), and Debs v. United States, 249 U.S. 211 (1919), in which the Court sustained convictions for what seems by today's standards to be ast......
    • United States
    • South Dakota Law Review Vol. 66 No. 3, September 2021
    • March 22, 2021 speech would not protect a man in falsely shouting fire in a theatre and causing a panic. Justice Holmes, Schenck v. United States, 249 U.S. 47, 52 Free speech is the right to shout "theater" in a crowded fire. Abbie Hoffman (3) INTRODUCTION If it is true that most people only retain a......
  • Ira C. Lupu & Robert W. Tuttle, Federalism and Faith
    • United States
    • Emory University School of Law Emory Law Journal No. 56-1, 2006
    • Invalid date
    ...speech applied to the states, the Court's conception of that freedom was very weak as applied to the nation. See Schenck v. United States, 249 U.S. 47 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S. 616 (1......
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