Mock Trial: Schenck v. United States (1919)

Before the Great War, labor unions, led by the International Workers of the World (IWW, or Wobblies) began to adopt tactics and strategies that went beyond staging strikes. They also contested and opposed the whole US system of government, and called for the overthrow of American capitalism. Their immediate actions still centered on protest of industrial working conditions, but their stated goals were different. One result was the federal government responded with repressive measures.

            In 1913 in Colorado, the most dramatic case of this conflict occurred when state militia, backed by the federal government, attacked and killed several dozen striking coal miners.

            The federal government’s response included the “Palmer Raids,” led by the attorney general of the time, A. Mitchell Palmer. (see below)

             In 1918, Charles Schenck, General Secretary of the Socialist Party in the United States, was arrested by the federal government for violating the Espionage Act of 1917. He had written and distributed 15,000 copies of a pamphlet (below), and also had used the US mail to send it to two draftees in particular. Schenck was convicted and sentenced to prison under the terms of the law.

            In 1919, the United States Supreme Court agreed to hear Schenck’s appeal of his conviction. Schenck argued that his arrest and conviction violated his First Amendment right to free expression. He did not deny that he wrote or distributed the pamphlet, nor that doing so violated the law, but that the law itself was unconstitutional, and that he could not therefore be held. The government argued that, in time of war, it had the power and the responsibility to hold people it considered dangerous.

            Your job is to consider the constitutionality of this law, as the Supreme Court did in 1919. It is expected that attorneys and witnesses will supplement these basic facts with research on the  circumstances surrounding the case. All outside research must be properly cited, using CMS footnote format. AT LEAST ONE SOURCE CITED HERE MUST BE A BOOK OTHER THAN A REFERENCE WORK. 

Roles

attorneys for United States:     two students                               

attorneys for Schenck: two students

judges         

Charles Schenck:                                     

Atty General Palmer:                             

Due on the day of the trial

For attorneys: A two-page essay arguing your case. You must argue for or against the constitutionality of the executive orders and the ensuing laws. Assume that Schenck broke the law – he does not contest that question – argue whether the law can stand. This paper may serve as the basis for your opening statements in class. Some outside research on the circumstances of the case will be necessary

For witnesses: A two-page essay in the form of an “affidavit,” explaining your position. You need not argue over the constitutionality of the law, just describe and explain your behavior.

Due the class meeting after the trial

For Justices: A one-page essay declaring your opinion in the matter. Present your decision and explain how you came to it.

Procedures:

8:15-8:30    Meet with your group to review the case

8:30 – 8:40      Opening arguments. Attorneys must present a three-minute minimum argument before the court.

8:40 – 8:55 (maximum)  questioning of Schenck (appellant first)

8:55 – 9:10 (maximum)  questioning of Palmer (respondent first)

9:10 – 9:15      closing arguments

9:15 – 9:35      Justices deliberate

            

“Assert Your Rights,” Charles Schenck (1919) -- the pamphlet for which Schenck was convicted

The Socialist Party says that any individual or officers of the law intrusted with the administration of conscription regulations violate the provisions of the United States Constitution, the supreme law of the land, when they refuse to recognize your right to assert your opposition to the draft.

In exempting clergymen and members of the Society of Friends (popularly called Quakers) from active military service the examination boards have discriminated against you.

If you do not assert and support your rights you are helping to "deny or disparage rights" which it is the solemn duty of all citizens and residents of the United States to retain.

In lending tacit or silent consent to the conscription law, in neglecting to assert your rights, you are (whether knowingly or not) helping to condone and support a most infamous and insidious conspiracy to abridge and destroy the sacred and cherished rights of a free people. You are a citizen: not a subject! You delegate your power to the officers of the law to be used for your good and welfare, not against you.

They are your servants; not your masters. Their wages come from the expenses of government which you pay. Will you allow them to unjustly rule you?

No power was delegated to send our citizens away to foreign shores to shoot up the people of other lands, no matter what may be their internal or international disputes.

To draw this country into the horrors of the present war in Europe, to force the youth of our land into the shambles and bloody trenches of war crazy nations, would be a crime the magnitude of which defies description. Words could not express the condemnation such cold-blooded ruthlessness deserves.

Will you stand idly by and see the Moloch of Militarism reach forth across the sea and fasten its tentacles upon this continent? Are you willing to submit to the degradation of having the Constitution of the United States treated as a "mere scrap of paper"?

No specious or plausible pleas about a "war for democracy" can becloud the issue. Democracy can not be shot into a nation. It must come spontaneously and purely from within.

Democracy must come through liberal education. Upholders of military ideas are unfit teachers.

To advocate the persecution of other peoples through the prosecution of war is an insult to every good and wholesome American tradition.

You are responsible. You must do your share to maintain, support, and uphold the rights of the people of this country.

In this world crisis where do you stand? Are you with the forces of liberty and light or war and darkness?

 “The Case Against the Reds” Atorney General Palmer (1920)

Like a prairie-fire, the blaze of revolution was sweeping over every American institution of law and order a year ago. It was eating its way into the homes of the American workmen, its sharp tongues of revolutionary heat were licking the altars of the churches, leaping into the belfry of the school bell, crawling into the sacred corners of American homes, seeking to replace marriage vows with libertine laws, burning up the foundations of society.

Robbery, not war, is the ideal of communism. This has been demonstrated in Russia, Germany, and in America. As a foe, the anarchist is fearless of his own life, for his creed is a fanaticism that admits no respect of any other creed. Obviously it is the creed of any criminal mind, which reasons always from motives impossible to clean thought. Crime is the degenerate factor in society.

Upon these two basic certainties, first that the "Reds" were criminal aliens and secondly that the American Government must prevent crime, it was decided that there could be no nice distinctions drawn between the theoretical ideals of the radicals and their actual violations of our national laws. An assassin may have brilliant intellectuality, he may be able to excuse his murder or robbery with fine oratory, but any theory which excuses crime is not wanted in America. This is no place for the criminal to flourish, nor will he do so so long as the rights of common citizenship can be exerted to prevent him.

OUR GOVERNMENT IN JEOPARDY

It has always been plain to me that when American citizens unite upon any national issue they are generally right, but it is sometimes difficult to make the issue clear to them. If the Department of Justice could succeed in attracting the attention of our optimistic citizens to the issue of internal revolution in this country, we felt sure there would be no revolution. The Government was in jeopardy; our private information of what was being done by the organization known as the Communist Party of America, with headquarters in Chicago, of what was being done by the Communist Internationale under their manifesto planned at Moscow last March by Trotzky, Lenin and others addressed "To the Proletariats of All Countries," of what strides the Communist Labor Party was making, removed all doubt. In this conclusion we did not ignore the definite standards of personal liberty, of free speech, which is the very temperament and heart of the people. The evidence was examined with the utmost care, with a personal leaning toward freedom of thought and word on all questions.

The whole mass of evidence, accumulated from all parts of the country, was scrupulously scanned, not merely for the written or spoken differences of viewpoint as to the Government of the United States, but, in spite of these things, to see if the hostile declarations might not be sincere in their announced motive to improve our social order. There was no hope of such a thing.

By stealing, murder and lies, Bolshevism has looted Russia not only of its material strength but of its moral force. A small clique of outcasts from the East Side of New York has attempted this, with what success we all know. Because a disreputable alien, Leon Bronstein, the man who now calls himself Trotzky, can inaugurate a reign of terror from his throne room in the Kremlin, because this lowest of all types known to New York can sleep in the Czar's bed, while hundreds of thousands in Russia are without food or shelter, should Americans be swayed by such doctrines?

Such a question, it would seem, should receive but one answer from America.

My information showed that communism in this country was an organization of thousands of aliens who were direct allies of Trotzky. Aliens of the same misshapen caste of mind and indecencies of character, and it showed that they were making the same glittering promises of lawlessness, of criminal autocracy to Americans, that they had made to the Russian peasants. How the Department of Justice discovered upwards of 60,000 of these organized agitators of the Trotzky doctrine in the United States is the confidential information upon which the Government is now sweeping the nation clean of such alien filth.