Schenck v. United States
Nos. 437, 438
SUPREME COURT OF THE UNITED STATES
249 U.S. 47
January 9, 10, 1919
March 3, 1919
Syllabus
Evidence held sufficient to connect the defendants with the mailing of printed circulars in pursuance
of a conspiracy to obstruct the recruiting and enlistment service, contrary to the Espionage Act of
June 15, 1917. P. 49. [48]
Incriminating document seized under a search warrant directed against a Socialist headquarters,
held admissible in evidence, consistently with the Fourth and Fifth Amendment, in a criminal
prosecution against the general secretary of a Socialist party, who had charge of the office. P. 50 .
Words which, ordinarily and in many places, would be within the freedom of speech protected by
the First Amendment may become subject to prohibition when of such a nature and used in such
circumstances a to create a clear and present danger that they will bring about the substantive evils
which Congress has a right to prevent. The character of every act depends upon the circumstances
in which it is done. P. 51 .
A conspiracy to circulate among men called and accepted for military service under the Selective
Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft, with the
intent to effect that result, and followed by the sending of such circulars, is within the power of
Congress to punish, and is punishable under the Espionage Act, § 4, although unsuccessful. P. 52 .
The word "recruiting," as used in the Espionage Act, § 3, means the gaining of fresh supplies of
men for the military forces, as well by draft a otherwise. P. 52
The amendment of the Espionage Act by the Act of May 16, 1918, c. 75, 40 Stat. 553, did not affect
the prosecution of offenses under the former. P. 53 .
Affirmed.
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, § 3, 40 Stat. 217, 219, by causing and attempting [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 defendants willfully conspired to have printed and circulated to
men who had been called and accepted for military service under the Act of May 18, 1917, 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 offence against the United States, towit,
to use the mails for the transmission of matter declared to be nonmailable by Title XII, § 2 of
the Act of June 15, 1917, 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 [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;
Weeks v. United States, 232 U.S. 383, 395, 396. 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. 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.
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 [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 anyone 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 [52] main
purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462. 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. 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. Bucks Stove & Range Co., 221 U.S. 418, 439. 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 § 4, 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. 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 [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.Stats., § 13.
Judgments affirmed.