Schenck v. United States
249 U.S. 47 (1919), subverted the apparent absolute nature of First Amendment protections of freedom of speech by establishing a “clear and present danger” test by which certain forms of incendiary speech become prosecutable. The case involved two New York Socialists who were convicted under the Espionage Act of 1917 for distributing handbills urging resistance to military conscription during World War I. The two appealed on First Amendment grounds to the Supreme Court, but Justice Oliver Wendell Holmes, Jr., writing for the Court, rejected their arguments and declared 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 theater and causing 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.” (see also Gitlow v. New York and Yates v. United States)
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