When Can Speech Be Banned? | Schenck v. United States

In episode 68 of Supreme Court Briefs, a Socialist Party leader distributes thousands of pamphlets encouraging young men to resist getting drafted to fight in World War One, but apparently that's illegal for real.

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Philadelphia, Pennsylvania, 1917
Charles Schenck, the general secretary of the Socialist Party, prints and mails more than 15,000 copies of pamphlets to men drafted into the military to fight in World War One. Drafted meaning that, under the Selective Service Act, they HAD to enlist, whether they wanted to or not. So what did these pamphlets say? Well basically, resist the draft. The pamphlet said the draft was basically no different than slavery, which of course goes against the Thirteenth Amendment, ya know. It’s worth noting that Schenck, and generally the entire Socialist Party, was STRONGLY against the war, claiming it was only being fought to benefit Wall Street investors who would make money from selling stuff to the military.

As it turns out, by distributing these pamphlets, Schenck was breaking the Espionage Act.

[ThatFanBoyGuy]

I would not equate falsely yelling "fire!" in a crowded theater to questioning the draft

[frostyframe]

I disagree with the court in this specific case. Yes, clear present danger is a good way to determine if speech should be restricted, but I don't think the speech in this case was inherently dangerous. I think that forcing people into the front lines of wars poses a clear and present danger to *them*, definitely more so than a pamphlet that encourages people to critically think of the nations policies. People should be free to criticize their nation's policies even if those in power don't like the outcome of that speech, even in Wartime.

[josueaguilar]

I am an Mexican American law student in Mexico and thanks to your videos, I am learning a lot about these kinds of precedents

[Daredsnail]

I don't think that being in war time should have affected the outcome of this case. Under this assumption couldn't the government dictate what people are allowed to say based off of what they deem to be appropriate at the time? Not sure if that is how it has been applied, but that was my first thought when hearing that. Good video as always Mr. Beat :)

[t.s.]

It would be lovely if people would stop thinking of Schenck and in particular the "fire in a crowded theater" line first when it comes to First Amendment jurisprudence. Schenck has largely been overturned by Brandenburg vs. Ohio and Holmes's statement about the theater (and almost everyone forgets that it was falsely yelling) was dicta.

[HistoryandHeadlines]

As a random note, I have been reading Mr. Beat's ultimate guide to U.S. presidential election book and am currently on the election of 1824!

[TheRennDawg]

Don't yell fire in a crowded theater, unless there is a fire.

[vicentemorua]

I cannot say enough how much I appreciate these videos for my AP Government class!

[shinnaay]

Never thought I'd be so excited to learn about US case law as an Aussie! Thanks as always Mr Beat! 🤗

[mixturebeatz]

"[The charged) would have been fine if they distributed the pamphlets during peace but the pamphlets were hurting the war effort so they are subject to pain of prosecution" This is literal tyranny. It's okay for us to remove constitutional freedoms if that freedom "hurts the war effort." The entire point of the freedom of speech is so that you can speak out against the actions of your government without pain of prosecution. How does this not include military orders? Shouting "fire" in a theater is not speaking out against the action of your government.

[Sleepingfishie]

Thank you for these they helped me get through 1L year!

Looking forward to Dobbs and others

[hendrikoras]

You're such a great teacher! Here in Estonia we need more people like you in the midst of our teacher shortage.

[mlittlemlittle]

It's interesting that how wars always are the most likely sources for exceptions of the sort, when it's against "us". And of course, the obvious problem that falsely yelling "fire" misrepresents facts, which will make a whole theatre run to the exit, while the "criminal" dissented against the morality and legality of the draft, which is an opinion that can be rejected by the enlisted.

My fav Mr beat series!

[themackiswack]

hey mr. beat, as someone who’s in AP Gov currently, these videos help a lot. What really got me hooked was the US v Miller case, because i live in Siloam Springs! It’s super cool seeing a big case like that occurring in my town. Keep up the great work!

[nicholasstafford]

Nice video as always, I remember studying this case in government class last year

[floralpatterns]

This is one of the most demonstrably wrong court decisions I've ever seen in this series, wow

[JerryHunt]

Was at the Sox game listening to “I hate the suburbs” we were up against the Royals and my Bears play the Chiefs next Saturday. Kansas is awesome, congratulations on Tuesday’s vote 🇺🇸

[Frozenfan-qrqc]

It was amazing that i learned so much about usa history from you and i’m going to Washington DC Mr. Beat

[jbandfriends-ghbl]

I can sorta agree with the case but I definitely agree that speech is not 100%free. Great video once again Mr Beat

[elchucabagra]

Another one for the books by Mr beat! He's the man! Mr beat is the best! We love you!