Nos. 437, 438




249 U.S. 47; 39 S. Ct. 247; 1919 U.S. LEXIS 2223; 63 L. Ed. 470; 17 Ohio L. Rep. 26; 17 Ohio L. Rep. 149



Argued January 9, 10, 1919

March 3, 1919,










OPINION: [*48] [**247] MR. JUSTICE HOLMES delivered the opinion of the court.


This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. [***3] 30, 3, 40 Stat. 217, 219, by causing

and attempting [*49] to cause [**248] insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment

service of the United States, when the United States was at war with the German Empire, to-wit, that the defendants wilfully conspired to have printed and circulated

to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such

insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count

alleges a conspiracy to commit an offence against the United States, to-wit, to use the mails for the transmission of matter declared to be non-mailable by Title XII,

2 of the Act of June 15, 1917, to-wit, the above mentioned document, with an averment of the same overt acts. The third count charges an unlawful use of the mails

for the transmission of the same matter and otherwise as above. The defendants were found guilty on all the counts. They set up the First Amendment to the

Constitution [***4] forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued

some other points also of which we must dispose.


It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the documents. According to the

testimony Schenck said he was general secretary of the Socialist party and had charge of the Socialist headquarters from which the documents were sent. He

identified a book found there as the minutes of the Executive Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should

be printed on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck personally attended to the

printing. On [*50] August 20 the general secretary's report said "Obtained new leaflets from printer and started work addressing envelopes" &c.; and there was a

resolve that Comrade Schenck be allowed $ 125 for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand printed. There were files

of the circular in question [***5] in the inner office which he said were printed on the other side of the one sided circular and were there for distribution. Other

copies were proved to have been sent through the mails to drafted men. Without going into confirmatory details that were proved, no reasonable man could doubt

that the defendant Schenck was largely instrumental in sending the circulars about. As to the defendant Baer there was evidence that she was a member of the

Executive Board and that the minutes of its transactions were hers. The argument as to the sufficiency of the evidence that the defendants conspired to send the

documents only impairs the seriousness of the real defence.


It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears. The contrary is established.

Adams v. New York, 192 U.S. 585; Weeks v. United States, 232 U.S. 383, 395, 396. The search warrant did not issue against the defendant but against the

Socialist headquarters at 1326 Arch Street and it would seem that the documents technically were not even in the defendants' possession. See Johnson v. United

States, 228 U.S. 457. Notwithstanding [***6] some protest in argument the notion that evidence even directly proceeding from the defendant in a criminal

proceeding is excluded in all cases by the Fifth Amendment is plainly unsound. Holt v. United States, 218 U.S. 245, 252, 253.


The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the

Conscription Act and that a conscript is little better than a [*51] convict. In impassioned language it intimated that conscription was despotism in its worst form and

a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said "Do not submit to intimidation," but in form at least confined itself to peaceful

measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights." It stated reasons for alleging that

any one violated the Constitution when he refused to recognize "your right to assert your opposition to the draft," and went on "If you do not assert and support your

rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents [***7] of the United States to retain." It described the

arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support

an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not

express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up "You must do your share to maintain, support and uphold the rights of the

people of this country." Of course the documents would not have been sent unless it had been intended to have some effect, and we do not see what effect it could

be expected to have upon persons subject to the [**249] draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury

might find against them on this point.


But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are

said to be quoted respectively from well-known public men. It well may be that the prohibition of laws abridging the freedom [***8] of speech is not confined to

previous restraints, although to prevent them may have been the [*52] main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462. We admit that in

many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of

every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would

not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all

the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. 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. It

is a question of proximity and degree. 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

[***9] will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an

actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in 4 punishes

conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done are the same, we

perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United States, 245 U.S. 474, 477. Indeed that case might be said

to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit

to add a few words.


It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The [*53] words are "obstruct the recruiting or enlistment

service," and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting

volunteers the word is [***10] apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is

put as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40

Stat. 553, of course, does not affect the present indictment and would not, even if the former act had been repealed. Rev. Stats., 13.


Judgments affirmed.