LAD/Blog #31: Schenck V. United States

The opinion of Justice Holmes begins with a summary of the counts against Schenck, which included attempting to undermine the recruitment efforts of the U.S. during a time of war, as well as using the mail to deliver things that were prohibited. Schenck tried to appeal by using the First Amendment which advocates freedom of speech and of the press. Schenck's documents essentially compared the draft to an action of a despot and told Americans to assert their constitutional rights. It was presumed that the intent of these documents was to obstruct the process of conscription. He then gave the analogy "a person who cries fire in a quiet park or home would be protected by the first amendment, whereas a person who cries fire in a crowded theater, creating a panic is not protected by the first amendment."  Thus, the first amendment does not apply to Schenck because he was trying to create "panic" or a "disturbance."





This case reminded me of the Japanese internment camps during WWII, which were considered constitutional given the circumstances of being at war, even though the act of putting the Japanese in camps was unconstitutional.