Clear and present danger

This article is about the legal concept regarding the government's ability to regulate speech under the First Amendment to the U.S. Constitution. For the novel by Tom Clancy, see Clear and Present Danger. For the feature film, see Clear and Present Danger (film).

Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States,^[1] concerning the ability of the government to regulate speech against the draft during World War I:

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right."

Following Schenck v. United States, "clear and present danger" became both a public metaphor for First Amendment speech^[2][3] and a standard test in cases before the Court where a United States law limits a citizen's First Amendment rights; the law is deemed to be constitutional if it can be shown that the language it prohibits poses a "clear and present danger". However, the "clear and present danger" criterion of the Schenck decision was replaced in 1969 by Brandenburg v. Ohio,^[4] and the test refined to determining whether the speech would provoke an "imminent lawless action".

The vast majority of legal scholars have concluded that in writing the Schenck opinion Justice Holmes never meant to replace the "bad tendency" test which had been established in the 1868 English case R. v. Hicklin and incorporated into American jurisprudence in the 1904 Supreme Court case U.S. ex rel. Turner v. Williams. This is demonstrated by the use of the word "tendency" in Schenck itself, a paragraph in Schenck explaining that the success of speech in causing the actual harm was not a prerequisite for conviction, and use of the bad-tendency test in the simultaneous Frohwerk v. United States and Debs v. United States decisions (both of which cite Schenck without using the words "clear and present danger").

However, a subsequent essay by Zechariah Chafee titled “Freedom of Speech in War Time” argued despite context that Holmes had intended to substitute clear and present danger for the bad-tendency standard a more protective standard of free speech.^[5] Bad tendency was a far more ambiguous standard where speech could be punished even in the absence of identifiable danger, and as such was strongly opposed by the fledgling American Civil Liberties Union and other libertarians of the time.

Having read Chafee's article, Holmes decided to retroactively reinterpret what he had meant by "clear and present danger" and accepted Chafee's characterization of the new test in his dissent in Abrams v. United States just six months after Schenck.^[6] Significantly unlike Abrams, the cases of Schenck, Frohwerk, and Debs had all produced unanimous decisions. Justice Brandeis soon began citing the "clear and present danger" test in his concurrences, but the new standard was not accepted by the full court until its official adoption in Brandenburg v. Ohio fifty years later.

See also

• Shouting fire in a crowded theater
• Imminent lawless action
• Threatening the President of the United States
• Masses Publishing Co. v. Patten (1917)
• Dennis v. United States
• Korematsu v. United States

References

1. ^ Schenck v. United States, 249 U.S. 47 (1919).
2. ^ Derrick, Geoffrey J. (2007). "Why the Judiciary Should Protect First Amendment Political Speech During Wartime: The Case for Deliberative Democracy". Lethbridge Undergraduate Research Journal 2 (1). ISSN 1718-8482. http://www.lurj.org/article.php/vol2n1/firstamend.xml. 
3. ^ Tsai, Robert L. (2004). "Fire, Metaphor, and Constitutional Myth-Making". Georgetown Law Journal 93: 181–239. ISSN 0016-8092. 
4. ^ Brandenburg v. Ohio, 395 U.S. 444 (1969).
5. ^ Chafee, Zechariah (1919). "Freedom of Speech in Wartime". Harvard Law Review 32 (8): 932–973. doi:10.2307/1327107. 
6. ^ Abrams v. United States, 250 U.S. 616 (1919).

Further reading

• Kessler, Mark (1993). "Legal Discourse and Political Intolerance: The Ideology of Clear and Present Danger". Law & Society Review (Law & Society Review, Vol. 27, No. 3) 27 (3): 559–598. doi:10.2307/3054105. JSTOR 3054105 .
• Ragan, Fred D. (1971). "Justice Oliver Wendell Holmes, Jr., Zechariah Chafee, Jr., and the Clear and Present Danger Test for Free Speech: The First Year, 1919". Journal of American History (The Journal of American History, Vol. 58, No. 1) 58 (1): 24–45. doi:10.2307/1890079. JSTOR 1890079 .
• Schwartz, Bernard (1994). "Holmes versus Hand: Clear and Present Danger or Advocacy of Unlawful Action?". The Supreme Court Review (The Supreme Court Review, Vol. 1994) 1994: 209–245. JSTOR 3109648 .

Research resources

• First Amendment Library entry on Schenck v. United States
• First Amendment Library entry on Famous First Amendment Phrases: Origins