249 U.S. 47 (1919)
In 1917, while the United States was at war with the German Empire, Charles Schenck and Elizabeth Baer were indicted in three counts under the Espionage Act of June 15, 1917.1 The first count charged a conspiracy to cause insubordination in the military and naval forces and to obstruct the recruiting and enlistment service. This was done by printing and circulating a document to men who had been called and accepted for military service under the Act of May 18, 1917. The second count charged a conspiracy to use the mails for transmission of the same non-mailable document.2 The third count charged unlawful use of the mails for that document.3 The defendants were found guilty on all counts.4
The document on one side recited the Thirteenth Amendment. It stated that the Conscription Act violated the idea embodied in it, describing conscription as despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street's chosen few.5 It urged readers not to submit to intimidation and to petition for repeal of the act.6 The other side, headed "Assert Your Rights," argued that anyone violated the Constitution by refusing to recognize the right to oppose the draft and warned that failing to assert rights helped deny them to all citizens.7
According to the testimony, Schenck stated he was general secretary of the Socialist party and had charge of the headquarters from which the documents were sent.8 He identified minutes of the Executive Committee showing a resolution of August 13, 1917, that 15,000 leaflets should be printed and mailed to men who had passed exemption boards.9 Schenck personally attended to the printing.10 The general secretary's report of August 20 noted obtaining new leaflets and starting work addressing envelopes, with a resolve allowing Schenck $125 for sending leaflets through the mail.11 Baer was a member of the Executive Board, and the minutes of its transactions were hers.12 Copies of the circular were sent through the mails to drafted men.13
The documentary evidence was obtained upon a search warrant directed at the Socialist headquarters at 1326 Arch Street.14 The defendants challenged their convictions, bringing the case to the Supreme Court on First Amendment grounds among other points.15
Whether the evidence was sufficient to prove that defendant Schenck was concerned in sending the documents?16
Evidence is sufficient to prove a defendant's involvement if the testimony shows he was largely instrumental in sending the circulars, as no reasonable man could doubt based on the facts presented.17
Yes. The testimony established that Schenck was the general secretary of the Socialist party with charge of the headquarters from which the documents were sent.18 He identified the minutes of the Executive Committee showing a resolution of August 13, 1917, that 15,000 leaflets should be printed and mailed to men who had passed exemption boards.19 Schenck personally attended to the printing.
The general secretary's report of August 20 noted obtaining new leaflets from the printer and starting work addressing envelopes, with a resolve allowing Schenck $125 for sending leaflets through the mail.20 Baer was a member of the Executive Board whose minutes recorded these transactions.21 Copies of the circular were sent through the mails to drafted men. These specific facts demonstrate Schenck's central role without any need for further confirmation.22
The evidence was sufficient to prove that defendant Schenck was concerned in sending the documents.23
Whether the documentary evidence obtained upon a search warrant was admissible?24
Documentary evidence obtained upon a valid search warrant is admissible even if directed at organizational headquarters rather than the individual defendants, and the Fifth Amendment does not exclude evidence proceeding from the defendant in criminal proceedings.25
Yes. The search warrant was valid so far as appears and was directed against the Socialist headquarters at 1326 Arch Street rather than against the defendants personally, with the documents technically not even in the defendants’ possession.26 Established precedent confirms that such evidence remains admissible.27 The notion of excluding all evidence proceeding from the defendant under the Fifth Amendment is plainly unsound.28
The documentary evidence obtained upon a search warrant was admissible.29
Whether the First Amendment protects the defendants from liability for circulating the document in question?30
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.31 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.32
No. The document on its face recited the Thirteenth Amendment.3334 It described conscription as despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street's chosen few.35 The side headed Assert Your Rights urged readers to assert opposition to the draft and warned that failing to do so helped deny rights to all citizens.36 The document was sent to men called and accepted for military service under the Act of May 18, 1917, and could be expected to influence them to obstruct the carrying out of the draft.37
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 no Court could regard them as protected by any constitutional right.38
The First Amendment does not protect the defendants from liability for circulating the document in question.39
Whether the Espionage Act punishes conspiracies to obstruct the recruiting service even absent proof of actual obstruction?40
The statute of 1917 in section 4 punishes conspiracies to obstruct as well as actual obstruction, and if the act, its tendency and the intent with which it is done are the same, success alone does not warrant distinguishing the crime.41
Yes. The Espionage Act of June 15, 1917, section 3, makes it criminal to cause or attempt to cause insubordination in the military forces or to obstruct the recruiting and enlistment service when the United States is at war.42 The Act punishes conspiracies to obstruct the recruiting or enlistment service, and recruiting is gaining fresh supplies for the forces as well by draft as otherwise.43 The defendants were charged with conspiring to have the document printed and circulated to men called for service, with overt acts ending in distribution, and the statute reaches such conspiracies without requiring proof that actual obstruction occurred.44
The Espionage Act punishes conspiracies to obstruct the recruiting service even absent proof of actual obstruction.45