Schenck and Abrams: Free Speech Under Fire

Charles Schenck was arrested and charged under the espionage act with conspiring to cause insubordination in the armed forces. He was also charged with obstructing the government’s efforts to recruit and enlist troops to fight the war.

According to the government’s case against Schenck, the pamphlets (around 15,000 of them) had been printed and distributed at his direction. The first count of the indictment charged Schenck and his fellow defendants with:

...willful and unlawful conspiracy to cause insubordination, disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States and to obstruct the recruiting and enlistment service of the United States, in that they did conspire to have printed and circulated the above-described circulars to men who had been called and accepted for military service under the provisions of the Selective Service Act.

Not one person testified that he was influenced, or persuaded in the slightest, by the socialist pamphlet which declared the military draft illegal. Not one person’s life - except for Schenck’s - was changed by the leaflet’s content. Reasonable defense notwithstanding, Schenck was found guilty of violating the law and was sentenced to ten years for each of the three charges against him. He did get one break: The trial court allowed his three ten-year sentences to run concurrently.

It wasn’t just Charles Schenck who was profoundly impacted by the Espionage and Sedition Act. At the time, many recent immigrants to the United States, who did not speak English well (or at all), looked to their foreign-language press for news and commentary. The sedition laws allowed the U.S. government to censor the foreign language press (just as British laws had earlier tried to silence colonists during Revolutionary War days), effectively barring dissent and banning anti-war sentiments. Schenck was only one of about 2,000 people prosecuted under those laws.

Schenck was sentenced to prison for declaring the truth as he saw it. He, and his lawyers, claimed he had the first-amendment right to do exactly that. Turns out, however, that America came perilously close to adopting a culture of censorship when Schenck’s case went to the United States Supreme Court.