IV. SCHENCK SURVIVES: THE LEGACY OF THE FIRST WARTIME PRECEDENT
Every law student in every law school using every constitutional law casebook knows that the law of free speech in wartime starts with Schenck v. United States65 (1919) and ends with Brandenburg v. Ohio66 (1969), the modern restatement of the applicable test. And as every law student believes, the totally deferential wartime standard for "clear and present danger" analysis in Schenck and its progeny - Frohwerk v. United States67, Debs v. United States68, Abrams v. United States69, Schaefer v. United States70, Gilbert v. Minnesota,71 and Dennis v. United States 72 - has been replaced by the genuinely strict standard of review applied in Brandenburg.
The lasting impression: the Schenck line of cases has been overruled by Brandenburg. Hence, the governing standard for protection of expression in wartime is Brandenburg's "imminent lawless action" or incitement test.73
Yet what every law student "knows" is wrong. Contrary to their beliefs, the Schenck to Dennis formulas have never been overruled. This is a fact that Justice Douglas (joined by Black) bemoaned in his Brandenburg concurrence.74 In a strict sense, then, Schenck and its offspring remain binding law. Moreover, Brandenburg is readily distinguishable. Unlike the other cases,75 it did not involve a prosecution for speech that interfered with war efforts.
