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Schenck v US [1919] 249 US 47, 48

By Oxbridge Law TeamUpdated 21/04/2024 20:12

Judgement for the case Schenck v US


  • Indictment marks the formal accusation by a grand jury or a prosecutor against an individual suspected of committing a crime.

    • Charges, stemming from this process, outline specific violations of law attributed to the accused.

    • They serve as the legal basis for the ensuing trial, detailing the alleged offenses and initiating the judicial process.

    • Evidence encompasses all material presented during a trial, including witness testimonies, documents, and physical objects, that is used to prove or disprove facts relevant to the case. 

  • A conviction occurs when the evidence presented persuades the judge or jury of the defendant's guilt beyond a reasonable doubt.

    • It signifies the legal conclusion that the accused is guilty of the crimes charged, leading to sentencing and potentially appeals or further legal proceedings.

  • Free speech, a cornerstone of democratic societies, encompasses the right to express opinions and ideas without censorship or punishment by the government.

    • However, its interpretation is subject to legal and societal norms, balancing individual liberties with considerations such as public safety, national security, and protection against defamation or hate speech. 

  • Courts often grapple with nuanced interpretations of free speech, weighing its exercise against competing interests and principles to establish boundaries.


  • Charles Schenck and Elizabeth Baer (“Defendants”),  were indicted for their involvement in distributing leaflets opposing the military draft during World War I.

    • The indictment charged them with violating the Espionage Act of 1917 by attempting to obstruct the recruitment and enlistment service of the United States military and by using the mail for transmitting materials deemed non-mailable.

  • The indictment covered three counts:

    1. The first count of the indictment alleged a conspiracy to cause insubordination and obstruction in the military forces by distributing anti-draft leaflets.

    2. The second count charged them with conspiracy to use the mail to transmit non-mailable materials, referring to the leaflets.

    3. The third count accused them of unlawfully using the mail to transmit the same materials.

  • During the trial, it was revealed that Schenck and Baer were involved in printing and distributing the leaflets, with Schenck being identified as the general secretary of the Socialist Party and having taken charge of the party headquarters where the leaflets were produced.

    • The leaflets argued against the draft, asserting violations of constitutional rights and urging recipients to petition for the repeal of the conscription law.


  • The Supreme Court upheld the conviction of Schenck and Baer, affirming that their actions posed a clear and present danger to the recruiting and enlistment service during wartime. 

  • The Court ruled that the government had the right to limit free speech when it threatened the nation's efforts in war. 

  • They were charged with violating the Espionage Act by obstructing military recruitment and using the mail for non-mailable materials.

  • The case established the "clear and present danger" test to determine when speech could be restricted under the First Amendment.


  • This case provides a comprehensive overview of the legal processes involved in criminal proceedings, particularly focusing on indictment, evidence, conviction, and free speech.

    • It effectively outlines the roles of indictment and evidence in initiating and supporting legal cases, respectively, while also highlighting the significance of conviction as the legal conclusion of guilt.

  • The commentary delves into the fundamental principle of free speech within democratic societies, emphasizing its importance while acknowledging the need for balance with other societal interests such as public safety and national security.

  • It accurately portrays the complexities of interpreting and applying free speech rights in legal contexts, where courts must navigate competing interests and principles to establish appropriate boundaries.

  • The Schenck v. United States case analysis within this framework is insightful. It highlights the specific charges brought against the defendants under the Espionage Act and explains how their actions were perceived as a threat to national security during wartime.

  • The Supreme Court's reference to the "clear and present danger" test underscores the significance of this case in shaping the legal understanding of free speech limitations.

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