SCHENCK v. UNITED
STATES
249 U.S. 47 (1919)
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 [249 U.S.
47, 49] 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
[249 U.S. 47, 50] 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; Weeks v. United States, 232 U.S. 383, 395 , 396 S., 34 Sup. Ct. 341, 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, 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 S., 31 Sup. Ct. 2
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 [249 U.S. 47, 51] 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 reasons for alleging that any one violated the Constitution
when he refused to recognize 'your right to assert your opposition to the
draft,' and went on, '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.' It 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 , &c.,
&c., winding up, 'You must do your share to maintain, support and uphold
the rights of the people of this country.' Of course the document would not
have been sent unless it had been intended to have some effect, and we do not
see what effect it could be expected to have upon persons subject to the draft
except to influence them to obstruct the carrying of it out. The defendants do
not deny that the jury might find against them on this point.
But it is said, suppose that that was the tendency of this
circular, it is protected by the First Amendment to the Constitution. Two of
the strongest expressions are said to be quoted respectively from well-known
public men. It well may be that the prohibition of laws abridging the freedom
of speech is not confined to previous restraints, although to prevent them may
have been the [249 U.S. 47, 52] main
purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462 , 27
S. Sup. Ct. 556, 51 L. ed. 879, 10 Ann. Cas. 689. We admit that in many places
and in ordinary times the defendants in saying all that was said in the
circular would have been within their constitutional rights. But the character
of every act depends upon the circumstances in which it is done. Aikens v.
Wisconsin, 195 U.S. 194, 205 , 206 S., 25 Sup. Ct.
3. 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. Buck's Stove & Range Co., 221 U.S. 418, 439 , 31 S. Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.)
874. 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. It seems to be
admitted that if an actual obstruction of the recruiting service were proved,
liability for words that produced that effect might be enforced. The statute of
1917 in section 4 (Comp. St. 1918 , 10212d) punishes
conspiracies to obstruct as well as actual obstruction. If the act, (speaking,
or circulating a paper,) its tendency and the intent with which it is done are
the same, we perceive no ground for saying that success alone warrants making
the act a crime. Goldman v. United States, 245 U.S. 474
, 477 38 Sup. Ct. 166, 62 L. ed. 410. Indeed
that case might be said to dispose of the present contention if the precedent
covers all media concludendi. But as the right to
free speech was not referred to specially, we have thought fit to add a few
words.
It was not argued that a conspiracy to obstruct the draft
was not within the words of the Act of 1917. The [249 U.S. 47, 53] words are 'obstruct the recruiting or
enlistment service,' and it might be suggested that they refer only to making
it hard to get volunteers. Recruiting heretofore usually having been
accomplished by getting volunteers the word is apt to call up that method only
in our minds. But recruiting is gaining fresh supplies for the forces, as well
by draft as otherwise. It is put as an alternative to enlistment or voluntary
enrollment in this act. The fact that the Act of 1917 was enlarged by the
amending Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not affect
the present indictment and would not, even if the former act had been repealed.
Rev. St. 13 (Comp. St. 14).
Judgments affirmed.