Assignment on Business Law in PDF

Running head: BUSINESS LAW
BUSINESS LAW
Name of the Student
Name of the University
Author Note

1BUSINESS LAW
Schenck v. United States,
Supreme Court of the United States, 1919.
249 U.S. 47.
Facts
This particular case Schenck v. United States 249 U.S. 471 was considered to be
a landmark or a milestone case concerning the implementation or the implementation of
the Espionage Act of 1917 which was prevailing during the World War I. Schenck was
considered to be first in line for the SC cases relating to modern understanding of the
First Amendment. During the World War I social democrat, Charles Schenck along with
Elizabeth Baer had circulated leaflets which declared that the draft was in violation of
the Thirteenth Amendment which was prevention against instinctive and involuntary
servitude. The leaflets had urged the general public to defy and contravene the draft.
However, in spite of such it advised passive action. Schenck had been charged with a
scheme or conspiracy in order to violate or disrupt the Espionage Act of 19172 through
the attempt of causing insubordination among the military and in addition to such
obstruct the recruitment of such. Schenck and Baer had been condemned of violating
such a law and had attracted on the grounds that the statute or the statutory provisions
had been in violation of the First Amendment3.
1 Schenck v. United States 249 U.S. 47
2 Espionage Act of 1917
3 Abrams, F. (2019). The First Amendment and the Imminence of Harm. Brook. L. Rev., 85, 7.

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Issue
The issue bought the judicial focus to the nexus between speech and criminal
action. The questions regarding intent and circumstances also arose. Whether there
have been any link or relation between the speech and illegal act.
Ruling
It had been a unanimous decision which had been written by Justice Oliver
Wendell Holmes, Jr., held that the criminal conviction of Schenck was considered to be
constitutional as the statutory provision was applicable to successful obstructions which
were laid down in the draft but the precedents in the common law permitted the
prosecution for the attempts that had been dangerously close to that of the success. In
other words, it can be understood that the court held the situation or the circumstances
during the time of war allowed for greater limitations and boundaries on free speech
than such would be allowable or permitted during peacetime due to the reason that
there would be new and greater dangers prevailing. As it had provided subsequent
cases like the case of Whitney v. California, 274 U.S. 357 (1927)4.
Reasons
Throughout the time of the 1920s the Court had abandoned the unblemished and
clear present danger rule but instead of such rule it had tried to utilize the earlier
devised ‘bad tendency’ doctrine which had tried to enable or permit the speech to be
restricted even more than that Homes had permitted or allowed. The decision in this
particular case had established two different fundamental principles which stated that
the First Amendment was not considered to be absolute and under several
4 Whitney v. California, 274 U.S. 357 (1927)

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circumstances the rights were considered to be protected by the Freedom of Speech
Clause and such paved the way for important countervailing interests which are
considered to be overriding the First Amendment Rights. It also established a certain
kind of standard which was considered to be subversive and along with such seditious
political speech which would measure under the First Amendment for the coming fifty
years. Prior to the punishment which could be given by the government who have
established a certain kind of scurrilous political material the Court had demonstrated
that the material relating to such had been published with the intention or with the
tendency to precipitate the criminal activity or the illegal activity that had been created
and such had been a clear and present danger for such activity that would have
resulted into this. Schenck had not agreed to every aspect relating to free speech as it
left unresolved number of crucial questions which created a certain kind of ambiguities
which could only be clarified through certain judicial decisions or the judicial decision-
making process. Therefore, this case was considered to be an example of how
immediate as well as probable a specific danger must be prior to such becoming clear
and present5.
5 Krotoszynski Jr, Ronald J. "The Clear and Present Dangers of the Clear and Present Danger Test:
Schenck and Abrams Revisited." SMUL Rev. 72 (2019): 415.

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Bibliography
Abrams, F. (2019). The First Amendment and the Imminence of Harm. Brook. L.
Rev., 85, 7.
Espionage Act of 1917
Krotoszynski Jr, Ronald J. "The Clear and Present Dangers of the Clear and Present
Danger Test: Schenck and Abrams Revisited." SMUL Rev. 72 (2019): 415.
Schenck v. United States 249 U.S. 47
Whitney v. California, 274 U.S. 357 (1927)