Judge the Brief

Case Name

United States v. Schenck (1919)

Case Facts

Charles Schenck, a Jehovah's Witness, was arrested in Philadelphia for distributing pamphlets that urged an overthrow of the government and resist the draft. Federal authorities arrested him for violating the Espionage Act. Specifically, they charged that he attempted to incite rebellion and that he illegally used the mail to do so.

Legal Issue

Does the Espionage Act violate the First Amendment guarantee of free speech?


Yes, by a vote of 6–3 the Court ruled in favor of Schenck.


  1. It is clear that the intended effect of the pamphlets was to influence people to obstruct the draft.
  2. In many places and in ordinary times, what the defendant said would have been within his constitutional rights. But the character of every act depends on the circumstances in which it occurs. The most stringent protection of free speech does not protect a man from falsely shouting, "Fire!" in a crowded movie theater.
  3. The main question is whether the words are used in such circumstances and are of such a nature as to create a "limited and eventual danger" that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. In this case, because the country was NOT at war, the words in the pamphlets do not create a limited and eventual danger.

Separate Opinions

  • Dissent by Justice Pitney