"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 . . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic . . . . 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."

Justice Holmes, writing for a unanimous Court

This case explores the legal concept of freedom of speech.

During World War I, the United States instituted a military draft to build the military force it needed to succeed in the war. In 1917, the United States passed the Espionage Act making it a “...crime to cause insubordination, disloyalty, mutiny, refusal of duty, in the military” or to obstruct military recruiting.

Soon after the United States entered the war, Charles T. Schenck, a prominent member of the Socialist Party was arrested for mailing out 15,000 flyers encouraging draft-age men to sign petitions and actively engage against the military draft by raising their voices to Congress and the president. Schenck believed he was exercising his right to free speech by encouraging people to use their right to petition the government. In 1917 he was convicted of violating the Espionage Act and sentenced to 10 years in prison. The Supreme Court reviewed his case in 1919, upholding his conviction and the constitutionality of the Espionage Act.



This section is for students. Use the links below to download classroom-ready .PDFs of case resources and activities. 


About the Case

Full Case Summaries

A thorough summary of case facts, issues, relevant constitutional provisions/statutes/precedents, arguments for each side, decision, and case impact.

Case Background and Vocabulary

Important background information and related vocabulary terms.

Visuals

Decision

Learning Activities

The Case

After the Case

This section is for teachers.

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About the Case


Learning Activities

The Case

After the Case


Teacher Resources

Teaching Strategies Used

Landmark Cases Glossary

The LandmarkCases.org glossary compiles all of the important vocab terms from case materials. It is provided as a view-only Google Sheet.

Glossary

Planning Time and Activities

If you have one day . . .

  • Read the background summary (•••, ••, •) and answer the questions.
  • Complete the Classifying Arguments Activity. Discuss which arguments the students find most convincing.
  • For homework, have students read the Key Excerpts from the Opinion and answer the questions. Follow-up the next day by reviewing the questions with students.

If you have two days . . .

  • Complete the activities for the first day (excluding the homework).
  • Complete the Judicial Opinion Writing Activity
  • For homework, have students read the Key Excerpts from the Opinion and answer the questions. Follow-up the next day by reviewing the questions with students.

If you have three days . . .

  • Complete the activities for the first and second days (excluding homework).
  • Have students read the Key Excerpts from the Opinion and answer the questions. Complete the Advertisement Analysis Activity

If you have four days . . .

  • Complete the activities for the first, second, and third days.
  • Complete the Political Cartoon Analysis
  • Complete the Applying Precedents Activity: Snyder v. Phelps (2011).

Landmark Cases Glossary

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