Schenck v. United States, case decided in 1919 by the U.S. Supreme Court. During World War I, Charles T. Schenck produced a pamphlet maintaining that the military draft was illegal, and was convicted under the Espionage Act of attempting to cause insubordination in the military and to obstruct recruiting. In his opinion for the Supreme Court, Justice Oliver Wendell Holmes rejected the argument that the pamphlet was protected by the First Amendment to the U.S. Constitution. He argued that speech may be suppressed if it creates a clear and present danger that it will produce a “substantive evil” which can be legally prevented. Subsequent decisions would limit the clear and present danger test to violent actions, and not the mere advocacy of ideas. Indeed, Holmes himself agreed that the 1919 decision had been abused by the federal government in cases where political dissidents were prosecuted.
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