Charles Schenck was the general secretary of the Socialist Party of the US, which was against implementing a military draft in their country.
Schenck was involved in the 1919 Supreme Court case Schenck v. United States. During the First World War, he was accused by the Federal government of conspiracy. He did it trying to cause insubordination among the military and to hinder recruitment. Schenck had been charged and tried for printing and distributing 15,000 leaflets that urged potential military draftees to reject military service during World War I. The consequences of his actions could be a real threat to the country.
The leaflets urged the prospective draftees to refrain from military service if they had already been drafted. That was done because military recruitment represented involuntary servitude, illicit by the Thirteenth Amendment that outlawed slavery. He believed that the war helped the upper class at the same time sacrificing the poor who were involuntarily sent to fight. Schenck was convicted, however, he appealed to the Supreme Court, protesting the court decision as it violated his rights for freedom of speech, described in the First Amendment. Still, the Court upheld his conviction as his actions could have resulted in something potentially harmful to the country. Justice Oliver Wendell Holmes, Jr. said to him that even the most severe protection of freedom of speech would never protect someone who was deliberately trying to protest the First World War’s military draft. The fliers that he handed out with another member of the Party, Elizabeth Baer, could create a clear danger at the time, as it was undermining the government’s effort to recruit men.
They were both accused of an attempt of violation of the Espionage Act of 1917. This Act got enhanced by the Sedition Act that was passed in 1918, which applied punishments just as severe on anyone guilty of making false statements of certain nature. These included interfering with the prosecution of the military, insults and/or abuse of the government, the Constitution or the flag. Harsh penalties would also be inflicted on those who agitated against the production of the materials necessary for war or defended any acts of this sort. As they were both conspiring in order to attempt the cause of insubordination among the American military during the war, Schenck and Baer were found guilty.
Schenck was sentenced to six months in jail; while he was imprisoned, the Supreme Court had to assess free speech challenges against the state’s interests on a case-by-case basis. This case drastically weakened the power of the First Amendment at times of war. That was due to removing its defense of free speech if that speech could instigate any criminal actions. This is when the Clear and Present Danger doctrine, that indicated the circumstances under which the First Amendment’s freedoms can be limited, was adopted.
However, it lasted only until 1969 when in Brandenburg v. Ohio “imminent lawless action” test replaced it. Its main point was protection on a larger range of speech meaning that the government can only limit one’s speech if it instigates illegal action sooner than police arrive to prevent it. Nevertheless, “the clear and present danger” test to this day remains as a standard in the military, used for evaluating constitutional protection of speech.