Schenk Vs. United States (Case Summary)
The Supreme Court of the United States in Schenk Vs. United States (1919) has propounded test of “clear and present danger” for testing any restriction on freedom of speech and press guaranteed under 1st Amendment to the USA Constitution.
FACTS OF THE CASE
After the United States entered in the 1st World War Espionage Act, 1917 was passed in USA. The Espionage Act, 1917 prohibited publication of such material which can interfere with US war efforts.
Mr. Schenk was general secretary of Socialist Party. He was involved in printing and distributing of leaflets against drafting of citizens in the First Word War. The leaflet inter alia intimated that conscription was despotism in worst form and a monstrous wrong against humanity in interest of Wall Street’s chosen few. The leaflet called upon the citizens to assert their opposition to draft. Trial was initiated against Mr. Schenk and he was indicted for violation of Espionage Act.
Mr. Schenk finally appealed before the Supreme Court.
ANALYSIS OF THE CASE
It was contended before the Supreme Court that contents of leaflet was protected by the First Amendment. It is pertinent to mention that the First Amendment to the Constitution of the USA grants citizens freedom of speech and press. No law passed by the Congress can abridge the same.
The Court observed that 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. 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 Court concluded that 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.
In the instant case the conviction of Schenk was found within the constitutional limits by the Supreme Court.
RELEVANCE OF THE CASE
The Supreme Court has propounded in this case “clear and present danger test” in testing any restriction on freedom of speech and press. This case for a long time served as precedent for adjudicating when free speech could be limited. This principle was even discussed by courts of other countries like Supreme Court of India. “Clear and present danger test” has been supplanted by “imminent lawless action test” in Brandenburg Vs. Ohia.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.
