Required caseFree Speech & Social Order

Schenck v. United States

1919·Unit 3: Civil Liberties and Civil Rights

Speech may be restricted when it creates a clear and present danger, especially during wartime.

Practice the comparison FRQRead the brief
Decided
1919
Clause at issue
First Amendment: Freedom of Speech
Course unit
Unit 3
Case number
3 of 14

Case brief

The three pieces every AP answer about this case should get right.

  1. 1

    The facts

    Charles Schenck distributed anti-draft leaflets urging resistance to World War I conscription and was convicted under the Espionage Act.

  2. 2

    The constitutional question

    Does the First Amendment protect speech that encourages draft resistance during wartime?

  3. 3

    The holding

    The Court upheld Schenck’s conviction.

Why it matters

  • The First Amendment is not absolute in every circumstance.
  • Speech that creates a clear and present danger to the nation may be punished.
  • The famous analogy: the most stringent protection of free speech would not protect falsely shouting fire in a crowded theater.

Check yourself

Three questions on Schenck v. United States: the holding, a common mix-up, and how it differs from another required case.

Question 1 of 3

In Schenck v. United States (1919), the Supreme Court upheld the conviction of a man who distributed leaflets urging people to resist the military draft during World War I. The Court reasoned that speech may be restricted when

SCOTUS comparison FRQ

Can you connect Schenck v. United States to a case you’ve never seen?

The exam hands you an unfamiliar case and asks how it relates to a required one. Practice that here: name the shared principle, state the holding, and explain the connection.

Start the comparison

You’ll compare it with

Brandenburg v. Ohio (1969)

Three parts

  1. A. Identify the shared principle
  2. B. Describe the required case
  3. C. Explain the connection

Frequently asked questions

What speech did the Court allow the government to punish?

Leaflets urging men to resist the World War I draft. Schenck was convicted under the Espionage Act, and the Court upheld the conviction. Political criticism is not automatically protected when the government can show a serious, immediate danger.

What standard comes from the opinion?

Clear and present danger. The crowded-theater line is only an illustration of that idea. The test itself is whether the speech creates a real danger the government may prevent, which the Court found in wartime draft resistance.

Does Schenck ban antiwar protest in general?

No. The holding is tied to the draft and to wartime. A later required case, Tinker, protects student antiwar armbands unless the school can show a substantial disruption. Same amendment, much narrower permission to punish.

What do I write on a comparison FRQ?

Schenck is required. Give the leaflet facts, the First Amendment, and the holding that speech creating a clear and present danger may be punished. It is the required case that limits speech, so it fits a new scenario about dangerous advocacy more than one about a school protest.

The other required cases