Talk:Schenck v. United States

Good summary
good summary-- but paraphrase is spelled incorrectly in the second to last paragraph. sorry to be a nag.

Added Citations
I added citations/references to the quotes from the text of the Justice Holmes' opinion. --grandpa lemon 20:16, 23 February 2012 (UTC) — Preceding unsigned comment added by Grandpa lemon (talk • contribs)

Did Brandenburg actually overrule Schenck
this is not the right info. it may have moved the clear and present danger standard to "imminent" danger, but it does not explicitly overrule the Schenck case. The article suggests that Brandenburg overturned both Whitney and Schenck, but it would be more technically accurate to say that it "narrowed" them. Schenck, surprisingly remains good law as far as I can tell.

www.chancelucky.blogspot.com


 * Brandenburg essentially overrules Schenck sub silentio. I don't think any judge could square the Court's reasoning in Brandenburg with the result reached in Schenck. But yes, you're correct in that Brandenburg only officially overrules Whitney v. California, which isn't even the most speech-restrictive precedent prior to 1969. That dubious distinction probably goes to Dennis v. United States, which the per curiam opinion actually cites to as if it's good law. But in reality, it isn't either. In trying to understand what the Supreme Court does, it is frequently necessary to look not just to what the Court says it's doing, but at what the results it reaches seem to indicate about what it's doing. SS451 17:18, 14 September 2005 (UTC)


 * The clear and present danger test, paraphrased, is 'if the speech creates the possibility that people might oppose a law or organize to get it changed, then that speech is not protected'. Also note that false speech, either shouted or whispered, in either a crowded theater or an empty one, is not protected by the First Amendment. ( Martin | talk • contribs 11:17, 19 May 2013 (UTC))

Misquote
I have fixed the block quote (the one that contains "clear and present danger"), as everything before that actual phrase is either a rough paraphrase of the actual sentence or drawn (and paraphrased) from other parts of the opinion. I also got rid of the bolding. It's unnecessary and rather insults the intelligence of our readers to suggest that they can't identify the key phrase (which is quoted immediately above) in a fairly short sentence. SS451 17:18, 14 September 2005 (UTC)

Schenck vs.United States
Brooke United States Supreme Court decision concerning whether the defendant possessed a First Amendment right to free speech against the draft during World War I. The defendant, Charles Schenck, a Socialist, had circulated a flyer to recently drafted men. The flyer, which cited the Thirteenth Amendment's provision against "involuntary servitude," exhorted the men to "assert [their] opposition to the draft," which it described as a moral wrong driven by the capitalist system. The circulars proposed peaceful resistance, such as petitioning to repeal the Conscription Act.

Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "[w]hen 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." In other words, the court argued, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime.

In the opinion's most famous passage, Justice Holmes sets out the "clear and present danger" standard:

"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." This case is also the source of the phrase "shouting fire in a crowded theater", a paraphrase of Holmes' view that "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic."

Critics of the decision argued that a more apt analogy for Schenck's actions would have been someone getting up between the acts and declaring that there were not enough fire exits, or shouting, not falsely, but truly that there was a raging inferno inside to people about the enter the theater.

As a result of the decision, Charles Schenck spent six months in prison. The "clear and present danger" test was later strengthened to the more inclusive "bad tendency" test in "Whitney v. California". Justices Holmes and Brandeis shied from this test, but concurred with the final result. Both of these cases were later narrowed by Brandenburg v. Ohio (1969), which replaced the "bad tendency" test with the "imminent lawless action" test.

United States Supreme Court decision concerning whether the defendant possessed a First Amendment right to free speech against the draft during World War I. The defendant, Charles Schenck, a Socialist, had circulated a flyer to recently drafted men. The flyer, which cited the Thirteenth Amendment's provision against "involuntary servitude," exhorted the men to "assert [their] opposition to the draft," which it described as a moral wrong driven by the capitalist system. The circulars proposed peaceful resistance, such as petitioning to repeal the Conscription Act.

Schenck was charged with conspiracy to violate the Espionage Act by attempting to cause insubordination in the military and to obstruct recruitment. The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "[w]hen 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." In other words, the court argued, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime.

In the opinion's most famous passage, Justice Holmes sets out the "clear and present danger" standard:

"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." This case is also the source of the phrase "shouting fire in a crowded theater", a paraphrase of Holmes' view that "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic."

Critics of the decision argued that a more apt analogy for Schenck's actions would have been someone getting up between the acts and declaring that there were not enough fire exits, or shouting, not falsely, but truly that there was a raging inferno inside to people about the enter the theater.

As a result of the decision, Charles Schenck spent six months in prison. The "clear and present danger" test was later strengthened to the more inclusive "bad tendency" test in "Whitney v. California". Justices Holmes and Brandeis shied from this test, but concurred with the final result. Both of these cases were later narrowed by Brandenburg v. Ohio (1969), which replaced the "bad tendency" test with the "imminent lawless action" test.

Merge of article on main page suggested
No reason is listed in the talk page for the prosed change. Is ther ea link to a relevant discussion? At any rate, why do (who) other editor/s feel this case is not important enough to have its own page?Ebanony (talk) 07:24, 6 December 2010 (UTC)
 * No, you misunderstood; the proposal is to merge Charles Schenck into this article, not to merge this case article somewhere else. postdlf (talk) 07:28, 6 December 2010 (UTC)
 * Apparantly I did. No problem. Ok, that article you cited has almost no use at all. Looks like it should have been merged with this one a while ago.Ebanony (talk) 07:48, 6 December 2010 (UTC)
 * It's funny, I see now that I was the one who tagged it for merging over two years ago... postdlf (talk) 14:07, 6 December 2010 (UTC)

Unclear as to clear and present
The lead says

Ultimately, the case established the "clear and present danger" test, which lasted until 1927 when its strength was diminished.

The protections for speech were raised, but this way of putting it confuses that I feel.

Is Schenck's religion/ethnicity relevant...?
I may have been overlooking something, but it seemed like Schenck being "a Yiddish-speaking Jew" wasn't relevant to the case or decision. AFAIK, personal traits usually aren't mentioned in Wikipedia articles unless there's a solid connection with the article topic, so if it doesn't meet that informal hurdle, it probably doesn't belong there any more than his shoe size. (If it does and I overlooked something, ignore this post! :) —Xyzzy☥the☥Avatar 06:38, 24 September 2013 (UTC)
 * Unsurprisingly, it's not mentioned in the Court's opinion. It's possible there is commentary somewhere that attributes his conviction in part to his ethnicity, but without any source presently cited that could provide that context (or even just verify the fact of it), it's not accomplishing anything right now to mention it in the article. postdlf (talk) 15:59, 24 September 2013 (UTC)

needlessly cryptic

 * Supreme Court Justice Oliver Wendell Holmes, Jr. wrote the often-cited opinion in the case, because of events that were not publicly known at the time.

The "events", I take it, being Holmes's dissent in a related case, as discussed below. I'd omit the "because" clause here: it doesn't add anything. —Tamfang (talk) 19:52, 3 November 2014 (UTC)

External links modified
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Added Images of Leaflet
I added images of the leaflet from the official record. I think it reveals the absurdity of this oft-cited disposition. No fair minded person could say this is not protected speech under the First Amendment.—bryanlafonte (talk) 14:07, 12 October 2016 (UTC)
 * advising & helping some one to commit a crime is not "free" speech in 2016. It's very expensive speech. Rjensen (talk) 18:15, 12 October 2016 (UTC)

Closing paragraph
In light of all the kvetching by leftist editors about "original research" and conclusions not being valid, what a surprise that none of you care that the last pararaph is just made up, with zero citations. It is not still good law, and it certainly isn't indisputably still good law;

https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/

Rivalin (talk) 19:10, 30 July 2018 (UTC)
 * ✅ Daask (talk) 23:21, 20 August 2018 (UTC)

opinion deleted
Deleted a line claiming the case is "one of the worst rulings" in U.S. history is from a random website called Money Inc doing a top 10 list in an opinion piece. 75.88.103.253 (talk) 05:32, 31 December 2021 (UTC)
 * How dare you! (Kidding!) I was annoyed to find out the info deleted, but after thinking about it, I understand your motivations and share the concern about subjectivity. But on the other hand, if more references, independent and reliable, can be found where it is stated also that it is one of the worst decisions of the SCOTUS, maybe it should be reinstated. Even though it may be a subjective ranking, it may reflect the opinion of legal experts throughout the country, which is useful information that has its merits of inclusion in the article. --Thinker78 (talk) 17:09, 1 January 2022 (UTC)

Wiki Education assignment: SSC199 Hon
— Assignment last updated by Ctysick (talk) 18:44, 6 December 2022 (UTC)

Garbled account of Baltzer
From the Background section: "In the first case arising from this campaign to come before the Court, Baltzer v. United States, 248 U.S. 593 (1918), Schenck had signed a petition criticizing his governor's administration of the draft, threatening him with defeat at the polls. They were charged with obstructing the recruitment and enlistment service, and convicted." So was Schenck a party in Baltzer, or is this an error? Who are the "they" that were charged and convicted? JBritnell (talk) 16:19, 11 March 2023 (UTC)
 * The defendants were "twenty‐seven socialists from a small farming community in South Dakota". I don't know if Schenck was one of them. Thinker78  (talk) 05:25, 13 March 2023 (UTC)
 * Responding to request for feedback at WT:SCOTUS – I can't find any reliable sources connecting Schenck to the Baltzer case, which isn't too surprising since Schenck was (per our article) from Pennsylvania, not South Dakota. (This appears to be the list of 27 defendants in Baltzer, and Schenck isn't on it.) Unless anyone can find a source I'm missing, I'd suggest changing the sentence to "the defendants had signed a petition criticizing their governor's administration of the draft..." or something like that. Extraordinary Writ (talk) 03:19, 17 March 2023 (UTC)
 * @Extraordinary Writ thanks for your prompt reply! I checked the link you provided but I couldn't find the names of the defendants. Regards, Thinker78  (talk) 20:06, 17 March 2023 (UTC)
 * If you zoom in on the document, you should see "UNITED STATES OF AMERICA, Plaintiff --vs-- Emanuel Baltzer, Gottfried Baltzer, Fritrich Leneschmidt," and a bunch of other people. Baltzer, Baltzer, Leneschmidt, and the others are the defendants. There's a similar list in this journal article, pg. 244, footnote 19. Extraordinary Writ (talk) 20:23, 17 March 2023 (UTC)
 * ✅ . Regards, Thinker78  (talk) 21:56, 20 March 2023 (UTC)
 * ✅ . Regards, Thinker78  (talk) 21:56, 20 March 2023 (UTC)