In 1917, Charles Schenck, General Secretary of the Socialist Party, was indicted for conspiring to violate the Espionage Act of 1917. The Espionage Act made it a federal crime to conspire to ‘‘cause or attempt to cause insubordination’’ in U.S. military or naval forces or to obstruct military recruiting when the country was at war, as it was in 1917; the United States entered World War I in April of 1917. The charge against Schenck was based on his having had circulars sent to men who had been drafted or were eligible for the draft; the Selective Service Act of 1917 had authorized drafting male citizens who were between twenty-one and thirty. The Socialist Party opposed the war and the draft and ordered the distribution of a circular encouraging opposition to both; Schenck had the circulars printed and sent out. The circulars claimed the draft was unconstitutional and the war was a capitalist plot and encouraged citizens to sign a petition to repeal the Selective Service Act. In a jury trial, Schenck was convicted; he appealed, arguing that the Espionage Act violated the First Amendment’s guarantee of free speech.
Justice Holmes wrote the Supreme Court’s opinion, which upheld Schenck’s conviction. He began by noting 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 theatre and causing a panic.’’ Holmes said the issue was whether the content of the circulars was ‘‘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.’’ He explained that when a country is at war ‘‘things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured.’’ As to the case at hand, Schenck had apparently conceded that he could have been convicted of violating the Act if the circulars had actually interfered with the draft. Holmes concluded, therefore, that because Schenck could have been convicted if the circulars had actually obstructed the draft, he could be convicted of conspiring to achieve such results: ‘‘[W]e perceive no ground for saying that success alone warrants making the act a crime.’’
Instead of focusing on the content of the circulars, Holmes used the concept of ‘‘speech as attempt’’ to uphold the conviction. In some instances, the content of speech is criminalized; at common law, for example, seditious libel was a crime. Seditious libel is speech that defames the government and brings it into disrepute; the crime is attacking the government and it is complete as soon as the seditious words have been published. Seditious libel punishes what someone says, not what they do. In Schenck, Holmes focused not on the content of the circulars, as such, but on what they sought to achieve.
Criminal law recognizes two types of crimes: inchoate crimes and substantive crimes. A substantive crime is a ‘‘true,’’ completed crime; substantive crimes target acts that result in the infliction of some kind of ‘‘harm.’’ So if Schenck’s circulars had actually obstructed the draft in Philadelphia, that would have been a substantive crime under the Espionage Act; the ‘‘harm’’ would have been interfering with the draft, which was needed for national security. Inchoate crimes, on the other hand, are incomplete; they target conduct that is intended to result in the commission of a substantive crime but does not, either because it is interrupted or because it fails. Attempt is an inchoate crime, as is conspiracy. The theory is that having inchoate crimes lets law enforcement stop would-be offenders before they commit substantive crimes. So if a husband puts poison in his wife’s food, he can be arrested and prosecuting for attempting to kill her even though she did not eat the food.
In Schenck, Holmes treated speech (the circulars) as an attempt to commit a crime; the Espionage Act made it a crime to conspire either to obstruct the draft or to attempt to obstruct the draft. According to his analysis, by conspiring with others to encourage resistance to the draft, Schenck conspired to attempt to obstruct the draft. Had his efforts succeeded, Schenck could have been convicted of conspiring to commit the substantive crime, that is, of conspiring to obstruct the draft. Because they failed, it was reasonable to hold him liable for conspiring to attempt to obstruct the draft; his conviction, therefore, rested not on the content of the circulars but on what they sought to achieve.
Fifty years later, in Brandenburg v. Ohio, the Supreme Court adopted a version of Holmes’ ‘‘clear and present danger’’ test. Brandenburg, a Ku Klux Klan leader, was convicted of violating a statute that made it a crime to advocate ‘‘unlawful methods’’ as ‘‘a means of accomplishing . . . political reform.’’ The conviction was based on comments he made at a Klan rally; the comments advocated violent action against African Americans and Jews. The Court held that the statute violated the First Amendment because it criminalized the content of speech—‘‘mere advocacy.’’ According to the Brandenburg Court, ‘‘advocacy’’ cannot be criminalized unless it ‘‘is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’’ Brandenburg is based on the same premise as Holmes’ test but is more protective of speech because it demands a closer connection between speech and unlawful action. To establish incitement under Brandenburg, the government must prove that the defendant explicitly advocated immediate unlawful conduct that was likely to occur.
SUSAN W. BRENNER
References and Further Reading
See also Anti-Anarchy and anti-anarchy-and-anti-syndicalism-statutes.html">Anti-Syndicalism Acts; Bill of Rights: Structure; Brandenburg Incitement Test; Brandenburg v. Ohio, 395 U.S. 444 (1969); Content-Based Regulation of Speech; Content-Neutral Regulation of Speech; Freedom of Speech and Press under the Constitution: Early History (1791–1917); Freedom of Speech Exclusions; Freedom of Speech: Modern Period (1917–Present); Freedom of the Press: Modern Period (1917–Present); Incitement to Violence and Free Speech; Ku Klux Klan; Philosophy and Theory of Freedom of Expression; Seditious Libel; Self-Fulfillment Theory of Free Speech; Speech versus Conduct Distinction; Theories of Free Speech Protection; World War I, Civil Liberties in