Clear and Present Danger Test

The phrase ‘‘clear and present danger,’’ as a criterion for determining when the government can constitutionally punish individuals for their speech, appeared for the first time in the opinion for the U.S. Supreme Court by Justice Oliver Wendell Holmes, Jr., in the case of Schenck v. United States (1919). In Schenck and two companion cases, the Court considered the constitutionality of convictions obtained under the federal Espionage Act against various pamphleteers and public speakers for speaking out against World War I and thus allegedly impeding military recruitment. In upholding their convictions, Holmes wrote:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic . . . . 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 Congress has a right to prevent. It is a question of proximity and degree.

The ‘‘clear and present danger’’ concept eschewed consideration of the speaker’s ‘‘bad’’ intentions or motivations and focused on the likelihood that an utterance would have consequences dangerous to the country, such as interference with military recruitment. This disinclination to probe into a speaker’s private beliefs or intentions was, in a general sense, protective of civil liberty. But it also seemed to authorize criminal punishment for speech even when the speaker had little control over, or even knowledge of, its consequences. Moreover, these ‘‘consequences’’ of a speech or pamphlet were little more than speculations made by courts and prosecutors, who in times of war were unlikely to err on the side of the speaker.

That Holmes had applied the clear and present danger test to uphold convictions in Schenck and its companion cases convinced contemporary liberals that the test offered little protection for unpopular speech. But Professor Zechariah Chafee of Harvard Law School argued in the New Republic that Holmes’s ‘‘clear and present danger’’ phrase was actually libertarian in spirit, because it established that the government must meet a high standard before it could punish speech consistently with the First Amendment. Both Chafee and U.S. District Court Judge Learned Hand, who had suggested a more speech-protective ‘‘incitement to violence’’ First Amendment test in a 1917 case, communicated with Holmes after the Schenck decision in a tactful effort to move Holmes toward a greater appreciation of the free speech values at stake.

These efforts proved partly successful when, only a few months after Schenck, Holmes dissented in United States v. Abrams. In Abrams, the Court upheld the convictions of several anarchists for distributing literature condemning the U.S. government’s postwar military policy in the Soviet Union. Holmes (joined by Justice Louis D. Brandeis) now condemned any government ‘‘attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.’’ His dissent became a rallying point for supporters of free speech and remains one of the most stirring statements in the free speech literature.

During the 1920s, the Court upheld a number of state-court convictions for subversive advocacy, always over a dissent by Holmes and/or Brandeis. In the best-known of these cases, Whitney v. California (1927), Brandeis wrote a separate opinion in which he sought to put more ‘‘teeth’’ into the ‘‘clear and present danger’’ formula: ‘‘[N]o danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion . . . [and] even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious.’’ Like Holmes’s dissent in Abrams, Brandeis’s Whitney opinion inspired civil libertarians. But it was not until the late 1930s and 1940s that a more liberal Court gradually transformed the free speech opinions of Holmes and Brandeis from lonely dissents into the law of the Constitution.

By 1937, a majority of the Court had seized hold of the ‘‘clear and present danger’’ test and adopted the libertarian gloss Brandeis had placed on it in his separate opinion in Whitney. Over the next few years the Court expanded the test’s application to circumstances far removed from the ‘‘seditious speech’’ situation for which it had been devised; it used the test to reverse convictions under state law for house-tohouse soliciting, for picketing, and for criminal contempt in publicly criticizing a judge during a pending case. Some, notably Justice Felix Frankfurter, deprecated this unsystematic application of the ‘‘clear and present danger’’ test, arguing that the Court was using it as a substitute for discriminating, case-by-case analysis of free speech problems.

The Court’s hospitality to civil liberties arguments diminished in the years after World War II. The clear and present danger test, as a meaningful protection of free speech, disintegrated in the Dennis case (1951), in which the Court upheld the convictions of American Communist Party leaders under the Smith Act, which prohibited the organizing of a group for the purpose of teaching the advisability of violently overthrowing the government. Several justices suggested that the assumptions underlying the ‘‘clear and present danger’’ concept were poorly adapted to a new and dangerous world. Courts could not engage in nice calculations of how clear, present, or grave a danger must be before the government could act to preempt the subversive activities of secret organizations presumably under the direction of a foreign dictator. In Dennis and ensuing cases, the Court largely disclaimed the authority to second-guess the legislative and executive branches in their determinations that those with radical political views or affiliations were subject to a variety of criminal and civil disabilities.

The Court returned to a more speech-protective jurisprudence in the 1960s, especially after political protest became associated more with the civil rights movement than with left-wing radicalism. Ironically, the Court gave perhaps its final nod to the clear and present danger test in 1969, when it specifically overruled Whitney while overturning the convictions of Ku Klux Klan members under an Ohio criminal syndicalism statute for organizing a rally. The ‘‘clear and present danger’’ test has long since departed the legal scene, partly because the problem of seditious speech that gave birth to it is no longer at the center of the First Amendment docket. But with the War on Terrorism and legislation like the Patriot Act, this situation may soon change.

CLYDE SPILLENGER

References and Further Reading

  • Gunther, Gerald, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, Stanford Law Review 27 (February 1975), 719–773.
  • Kalven, Harry. A Worthy Tradition: Freedom of Speech in America. New York: Harper & Row, 1988.
  • Rabban, David M. Free Speech in Its Forgotten Years. Cambridge University Press, 1997.
  • Stone, Geoffrey. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W.W. Norton, 2004.

Cases and Statutes Cited

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