CLEAR AND PRESENT DANGER
This ringing phrase signifies the most famous test for judging whether the First Amendment to the U.S. Constitution
may be temporarily set aside in times of peril to the nation.
This famous legal term has become common coinage, borrowed for use in spy novels and as the title for a popular
motion picture in 1999. The clear and present danger test is
used by judges to balance national security against freedom
of expression, thus diluting the First Amendment’s command, “Congress shall make no law…abridging the freedom
of speech, or of the press. . .” The clear and present danger
test, written by U. S. Supreme Court Justice Oliver Wendell
Homes, Jr., was part of a unanimous judgment upholding
the Espionage Act conviction and fifteen-year sentence of
Charles T. Schenck and co-defendants for publishing circulars opposing conscription (of the drafting of men) into the
armed services during the World War I era.
Justice Holmes conceded that in normal times, Schenck’s
words would have been protected under the Constitution.
The nature of utterances and actions, however, depends on
the circumstances in which they are done. Justice Holmes
then wrote one of the most consistently misquoted statements in American legal history: “The most stringent protection of free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic” (Schenck v.
United States, 52). References to this famed statement often
omit the word “falsely.”
Noting that the United States was at war, Holmes wrote
that the question was “. . . whether the words used . . . are of
such a nature 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.”
In two other Espionage Act cases decided by the Court in
1919, Frohwerk v. United States and Debs v. United States,
convictions were again affirmed by Justice Holmes, writing for a unanimous Court. The offenses of Frohwerk and
Debs dealt less directly with interference with conscription
than with fervent statements in opposition to the war, but
they were convicted nonetheless under the clear and present
danger language.
The clear and present danger language, however, was
not stringent enough to satisfy the majority of the Court.
In another World War I decision, Abrams v. United States
(1919), seven Justices turned to the more repressive concept
that words could be punished if they had a “bad tendency”
showing a “presumed intent” to cause a harmful result.
Jacob Abrams was one of six defendants criticizing the
United States’ part in the Russian Expeditionary Force at
the end of World War I. The prosecution of Abrams and
the others was based on the 1918 Sedition Act amending
the Espionage Act of 1917 by more broadly criminalizing
words that interfered with the United States’ prosecution
of the war against Germany. Although Abrams and codefendants published leaflets opposing the United States
joining with other nations to send an expeditionary force
into Russia, they were not directly concerned with fighting
Germany. The leaflets argued that munitions workers go on
strike so their bullets could not be used against Russia. For
the Court’s majority, that was close enough to opposing the
war effort against Germany, and the Court upheld the convictions of Abrams and his co-defendants.
In dissent, Holmes—joined by Justice Louis D.
Brandeis—wrote that in the Abrams case, sentences of
twenty years were meted out for publishing two leaflets that
the authors had as much right to publish “as the Government has to publish the Constitution now vainly invoked
by them.” Holmes’s language, contending that protesters
such as these “poor and puny anonymities” created no clear
and present danger, was at its most memorable. Holmes
defended the “free trade in ideas,” and wrote that “the best
test of truth is the power of the thought to get itself accepted
in the marketplace of ideas” (Abrams, 630).
Holmes and Brandeis also relied on the clear and present danger test in opposing the conviction of Benjamin Gitlow, business manager of a radical socialist newspaper, The
Revolutionary Age, for violation of the New York criminal anarchy statute (see Gitlow v. New York, 1925). Even
in upholding the conviction of the unfortunate Gitlow, the
Court’s majority enunciated the important principle that the
First Amendment’s power was national, applying not only
to actions by Congress, but also to protect speech and press
against repressive actions in the states.
The anxious days before World War II led to passage
of the Alien Registration Act of 1940, aimed at activities
of the Communist Party in the United States. Called the
Smith Act, it was the first peacetime sedition law passed by
Congress since the Alien and Sedition Acts of 1798. During Cold War tensions with the Soviet Union, the Supreme
Court decided Dennis v. United States (1951), convictions
of communists for attempting to overthrow the government
were upheld. The Court borrowed Judge Learned Hand’s
formula for weighing the “gravity of the ‘evil,’ as discounted by its improbability,” to see whether there is justification for punishing expression. The danger did not have to
be imminent because self-preservation of government was
the paramount concern (Dennis, 510).
In Yates v. United States (1957), the Supreme Court
overturned Smith Act convictions of fourteen leaders
of the Communist Party, By 1969, the U.S. Supreme
Court held in a case involving the Ku Klux Klan that
states could not punish expression calling for the use of
force or violation of law “except where such advocacy
is directed to producing imminent lawless action and is
likely to incite or produce such action” (Brandenburg v.
Ohio, 448)
Despite its fame, the clear and present danger test generally turned into an empty slogan for defendants in speech
and press cases in wartime. When the Court majority followed the doctrine, the defendants were convicted. When
the Court majority shifted to an even less lenient “bad
tendency” approach, the defendants were convicted. And
in the Communist Party prosecutions, a rewriting of clear
and present danger to something akin to “clear and possible danger” still meant that defendants’ convictions were upheld, until the Court tried to distinguish between permissible teaching of abstract theory and illegal teaching of doctrine as incitement to action.
The clear and present danger test seemingly worked
best apart from wartime or national security concerns. Just
before World War II, judges’ efforts to mete out punishments for contempt for publishing criticism of their courts
was thwarted by the U.S. Supreme Court’s use of the clear
and present danger formulation. In Bridges v. California
(1941), the Court dismantled old rules that said that courts
could not be criticized while cases were pending before
them. Writing for the Court, Justice Hugo L. Black also
declared that more than a “reasonable tendency” must
be proven to sustain a contempt order. A clear and present danger to the administration of justice must be proven.
This use of the clear and present danger test virtually ended
contempt-by-publication orders by judges for criticism from
outside of the courtroom.
Further Reading
Abrams v. United States, 250 U.S. 616 (1919).
Brandenburg v. Ohio, 395 U.S. 444 (1969).
Bridges v. California, 314 U.S. 252 (1941).
Chafee, Zechariah, Jr. Free Speech in the United States. Cambridge, MA: Harvard University Press, 1941.
Debs v. United States, 249 U.S. 211 (1969).
Frohwerk v. United States, 249 U.S. 204 (1919).
Gitlow v. New York, 268 U.S. 652 (1925).
Kalven, Jr. Harry. A Worthy Tradition: Freedom of Speech in
America, Jamie Kalven, ed. New York, New York University Press, 1988.
Ragan, Fred D. “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,
58 (June 1971): 24–45.
Schenck v. United States, 249 U.S. 47 (1919).
White, G. Edward. Justice Oliver Wendell Holmes: Law and the
Inner Self. New York, Oxford University Press, 1993.
Dwight L. Teeter, Jr.