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 theater and causing a panic. The question in every case is whether the words used are used in such circumstances so as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree and wartime is a circumstance that may justify a hinderance.
While the United States was at war with the German Empire, the defendants, Schenck and Baer, circulated leaflets that urged for insubordination in the military and naval forces of the United States. The leaflets also encouraged men to refuse to submit to the draft into military service. For attempting to obstruct military recruitment, defendants were convicted of crimes pursuant to the Espionage Act. As a defense, the defendants asserted that the distribution of the leaflets was an activity protected by the First Amendment.
Taking into consideration the political climate, were the defendants’ actions protected by the First Amendment of the U.S. Constitution?
The Court admitted that in many places and in ordinary times, the distribution of the leaflets would have been within defendants' constitutional rights. The Court explained, however, that the character of protected speech depended upon the circumstances in which it was expressed. For example, the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case was whether the words were used in such circumstances and were of such nature as to create a clear and present danger that they would bring about the substantive evils that Congress had a right to prevent. Because Congress was within its power to punish activity intended to obstruct the draft, the conviction of defendants did not violate the First Amendment.