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Schenck v. United States

Schenck v. United States, 249 U.S. 47 (1919), is a United States Supreme Court case concerning whether the defendant possessed a First Amendment right to free speech against the draft during World War I. The defendant, Schenck, had circulated a flyer to recently-drafted men. The flyer exhorted them to "assert [their] opposition to the draft" and not to "submit to intimidation".

The Court, in an opinion written by Justice Oliver Wendell Holmes, held that Schenck's conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "[w]hen 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 will not be endured so long as men fight."

In the opinion's most famous passage, Justice Holmes sets out the "clear and present danger" standard:

"Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done."

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