Clear and present danger
Encyclopedia
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
, concerning the ability of the government to regulate speech against the draft during World War I
:
Following Schenck v. United States
, "clear and present danger" became both a public metaphor for First Amendment
speech 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
, 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. 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. 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.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
in the unanimous opinion for the case Schenck v. United States
Schenck v. United States
Schenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...
, concerning the ability of the government to regulate speech against the draft during World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
:
Following Schenck v. United States
Schenck v. United States
Schenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...
, "clear and present danger" became both a public metaphor for First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
speech and a standard test in cases before the Court where a United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
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
Brandenburg v. Ohio
Brandenburg v. Ohio, , was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action...
, and the test refined to determining whether the speech would provoke an "imminent lawless action
Imminent lawless action
"Imminent lawless action" is a standard currently used, and that was established by the United States Supreme Court in Brandenburg v. Ohio , for defining the limits of freedom of speech. Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v....
".
The vast majority of legal scholars have concluded that in writing the Schenck opinion Justice Holmes never meant to replace the "bad tendency
Bad tendency (legal)
In U.S. law, the bad tendency principle is a test which permits restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity. The principle, formulated in Patterson v. Colorado, was seemingly overturned with the...
" test which had been established in the 1868 English case R. v. Hicklin
Hicklin test
The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...
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
Debs v. United States
Debs v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917.Eugene V. Debs was an American labor and political leader and five-time Socialist Party of America candidate for the American Presidency...
decisions (both of which cite Schenck without using the words "clear and present danger").
However, a subsequent essay by Zechariah Chafee
Zechariah Chafee
Zechariah Chafee, Jr. was an American judicial philosopher and civil libertarian. An advocate for free speech, he was described by Senator Joseph McCarthy as "dangerous" to the United States...
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. 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
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
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
Abrams v. United States
Abrams v. United States, 250 U.S. 616 , was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the...
just six months after Schenck. 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
Brandenburg v. Ohio
Brandenburg v. Ohio, , was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action...
fifty years later.
See also
- Shouting fire in a crowded theaterShouting fire in a crowded theater"Shouting fire in a crowded theatre" is a popular metaphor and frequent paraphrasing of Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919...
- Imminent lawless actionImminent lawless action"Imminent lawless action" is a standard currently used, and that was established by the United States Supreme Court in Brandenburg v. Ohio , for defining the limits of freedom of speech. Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v....
- Threatening the President of the United StatesThreatening the President of the United StatesThreatening the President of the United States is a class D felony under United States Code Title 18, Section 871. It consists of knowingly and willfully mailing or otherwise making "any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States"...
- Masses Publishing Co. v. PattenMasses Publishing Co. v. PattenMasses Publishing Co. v. Patten, 244 F. 535 , was a decision by the United States District Court for the Southern District of New York, that addressed advocacy of illegal activity under the First Amendment.-Background:...
(1917) - Dennis v. United StatesDennis v. United StatesDennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...
- Korematsu v. United StatesKorematsu v. United StatesKorematsu v. United States, 323 U.S. 214 , was a landmark United States Supreme Court case concerning the constitutionality of Executive Order 9066, which ordered Japanese Americans into internment camps during World War II....