Yelling “Fire!” in a Crowded Theater – Schenck v. US

Yelling “Fire!” in a Crowded Theater - Schenck v. US
Justice Oliver Wendell Holmes Jr., c. 1924, introduced the clear-and-present-danger test. | Yelling “Fire!” in a Crowded Theater – Schenck v. US

Yelling “Fire!” in a Crowded Theater – Schenck v. US

During World War I, socialists Charles Schenck and Elizabeth Baer distributed pamphlets claiming that the draft was in violation of the Thirteenth Amendment’s ban on involuntary servitude. The leaflets urged people to oppose the conscription, but only in a peaceful way. Schenck was charged with conspiring to break the 1917 Espionage Act by inciting military insubordination and obstructing recruitment. Schenck and Baer were found guilty of breaking this legislation and filed an appeal claiming that the statute was unconstitutional under the First Amendment.

Did Schenck’s conviction under the Espionage Act for criticizing the draft infringe on his right to free expression under the First Amendment?

The Court decided that the Espionage Act did not violate the First Amendment and that it was a legitimate use of Congress’ wartime power. Justice Oliver Wendell Holmes, writing for a unanimous Court, found that courts gave greater deference to the government during times of war, even when constitutional rights were at stake. For the first instance, Holmes articulated the “clear and present danger standard,” concluding that the First Amendment does not protect speech that threatens to cause a grave ill that Congress has the ability to prohibit. The mass distribution of the pamphlets, Holmes reasoned, was likely to cause the conscription process to be disrupted. He famously compared the leaflets to falsely shouting “Fire!” in a packed theater, which the First Amendment forbids.



Free Speech and Threats of Violence (1969).


Yelling “Fire!” in a Crowded Theater – Schenck v. US

The Law Book: From Hammurabi to the International Criminal Court, 250 Milestones in the History of Law (Sterling Milestones) Hardcover – Illustrated, 22 Oct. 2015, English edition by Michael H. Roffer (Autor)