CLEAR AND PRESENT DANGER

CLEAR AND PRESENT DANGER

An early standard by which the constitutionality
of laws regulating subversive expression were eval-
uated in light of the First Amendment’s guarantee
of FREEDOM OF SPEECH.
Justice OLIVER WENDELL HOLMES JR. ,writ-
ing for the U.S. Supreme Court in SCHENCK V.
UNITED STATES, 249 U.S. 47, 39 S. Ct. 247, 63 L.
Ed. 470 (1919), stated: “The question in every
case is whether the words used are used in such
circumstances and are of such a nature as to cre-
ate a clear and present danger that they will
bring about the substantive evils that Congress
has a right to prevent.”
The famous free speech standard proved
easier to formulate than to apply, when less than
a year after first articulating it in Schenck,
Holmes dissented from a majority opinion that
invoked the clear-and-present-danger test to
justify upholding the convictions of five anti-
war protestors who had distributed allegedly
seditious pamphlets. ABRAMS V. UNITED STATES,
250 U.S. 616, 1180, 40 S. Ct. 17, 63 L. Ed 1173
(1919).
The clear-and-present-danger doctrine is a
freedom of speech doctrine first announced by
the U.S. Supreme Court in Schenck v. United
States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470
(1919), during a controversial period in U.S. his-
tory when the FIRST AMENDMENT often clashed
with the government’s interest in maintaining
order and morale during wartime. Various for-
mulations of the doctrine have appeared in
other significant Supreme Court decisions
throughout the years.
In Schenck, the defendants had been con-
victed of violating the ESPIONAGE ACT OF 1917,
18 U.S.C.A. §§ 11, 791 – 794, 2388, 3241; 22
U.S.C.A. §§ 213 et seq.; 50 U.S.C.A. §§ 191 et
seq., which prohibited the making of false state-
ments with the intent to interfere with the oper-
ation of the armed forces or to cause
insubordination, disloyalty, or mutiny in the
armed forces. The act also made it a crime to
obstruct military recruitment and enlistment.
Charles T. Schenck, who was the general secre-
tary of the Socialist party, and the other defen-
dants had printed and distributed 15,000 leaflets
opposing the then recently enacted SELECTIVE
SERVICE Act and mailed many to WORLD WAR I
draftees (May 18, 1917, c. 15, 40 Stat. 76). At
trial, Schenck had not denied that the leaflets
were intended to obstruct recruitment and
enlistment by attempting to persuade people to
resist the draft, in violation of the Espionage Act.
Instead, he had argued that the leaflets were pro-
tected by the First Amendment. The U.S.
Supreme Court upheld the convictions.
Justice Oliver Wendell Holmes Jr., writing
for a unanimous Court, stated that speech could
be punished if “the words are used in such cir-
cumstances and 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.” According to Holmes, the
leaflets in Schenck were printed during wartime
with the intent to obstruct induction efforts, an
intent that was prohibited by federal law, and
thus constituted such a clear and present danger.
“When a nation is at war,” he wrote, “. . . things
that might be said in time of peace that are such
a hindrance to its effort . . . will not be endured
so long as men fight and . . . no Court could
regard them as protected by any constitutional
right.”
In later decisions, the Supreme Court revis-
ited and, in some instances, reformulated the
clear-and-present-danger standard as first
enunciated by Holmes. In another World War I
decision issued just eight months after Schenck,
Abrams v. United States, 250 U.S. 616, 40 S. Ct.
17, 63 L. Ed. 1173 (1919), five Russian-born
immigrants had been convicted of distributing
allegedly seditious pamphlets that were critical of the U.S. government for sending troops into Russia. A seven-justice majority of the Court upheld the convictions. In his majority opinion, Justice JOHN H. CLARKE followed Holmes’s reasoning in Schenck, noting that the pamphlets had been distributed “at the supreme crisis of the war” and that they were “an attempt to defeat the war plans of the Government.” Thus, Clarke concluded, the leaflets presented a clear
and present danger. Holmes dissented from the
majority decision and modified his earlier state-
ment of the clear-and-present-danger test. Con-
cerned about a rising tide of hysteria that could
potentially impinge on free expression, Holmes
argued for a broader interpretation of the clearand-
present-danger standard, writing that speech could be punished only if it “produces or
is intended to produce a clear and imminent
danger that will bring about . . . certain substantive
evils that the United States . . . may seek to
prevent.” All opinions, he argued, must be protected
“unless they imminently threaten immediate
interference with the lawful and pressing
purposes of the law.” Holmes believed that in
Abrams, the “surreptitious publishing of a silly
leaflet” did not create such a danger.
Six years after Abrams, the Court decided
GITLOW V. NEW YORK, 268 U.S. 652, 45 S. Ct.
625, 69 L. Ed. 1138 (1925), in which Benjamin
Gitlow, a member of the Socialist party, had
been convicted of distributing leaflets advocating
the overthrow of the government in violation
of New York state CRIMINAL LAW. The
Supreme Court upheld Gitlow’s conviction with
Justice EDWARD T. SANFORD writing, “A state
may punish utterances endangering the foundations
of organized government and threatening
its overthrow by violent means.” Sanford, while
conceding that Gitlow’s pamphlet did not
immediately incite criminal action, nevertheless
maintained that it could constitute a “revolutionary
spark” that could later result in a
“sweeping and destructive conflagration.”
Holmes strongly disagreed with the majority’s
contention that words not associated with
action could be punished. Joined by LOUIS D.
BRANDEIS in dissent, Holmes once more argued
for application of a standard requiring that danger
be imminent before speech could be punished.
According to Holmes, Gitlow’s pamphlets
presented no such danger: “[E]loquence may set
fire to reason. But whatever may be thought of
the . . . discourse before us, it has no chance of
starting a present conflagration.”
Holmes and Brandeis joined forces again
two years later in Whitney v. California, 274 U.S.
357, 47 S. Ct. 641, 71 L. Ed. 1095 (1927), in
which they once more argued that before speech
could be prohibited, a clear and present danger
must be imminent. Charlotte Whitney, a prominent
member of the Socialist party, had participated
in a convention establishing the California
branch of the new Communist Labor party.
Whitney argued for the adoption of a resolution
dedicating the party to seek political change
through ballot measures. Her efforts were
defeated by a competing resolution arguing for
revolution as a means to overthrow capitalism.
Whitney remained a participant in the convention
and attended one or two meetings of the
party. She was later convicted under a California
law prohibiting participation in groups advocating
criminal activity (Criminal Sydicalism Act of
California, Statutes 1919, c. 188, p. 281).A unanimous
Supreme Court sustained Whitney’s conviction,
holding that by assembling with others
to form a group that advocated the forceful
overthrow of the government, she had acted in a
manner that posed a danger to the “public
peace,” in violation of the state law. Holmes and
Brandeis, though concurring in the judgment,
believed that the law had improperly infringed
on Whitney’s free speech rights and maintained
that speech could be restricted only if the assembly
created an imminent danger. Brandeis wrote
that “to support a finding of clear and present
danger it must be shown either that immediate
serious violence was to be expected or was advocated.
. . . The fact that speech is likely to result in
. . . violence or in destruction is not enough to
justify its suppression.”
Subsequently, the Supreme Court applied
the clear-and-present-danger test in a variety of
other contexts. In Thornhill v. Alabama, 310 U.S.
88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940), for
example, the doctrine was used to protect LABOR
UNION picketing, and in Bridges v. California,
314 U.S. 252, 62 S. Ct. 190, 86 L. Ed. 192 (1941),
the Court relied on it to overturn the conviction
of a union leader who had criticized a judge in a
pending case.
Some 30 years after Holmes first enunciated
the clear-and-present-danger test in Schenck, the
Court returned to the doctrine in another case
involving individuals advocating the overthrow
of the government. In Dennis v. United States,
341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951),
11 Communist party leaders had been convicted
of violating the SMITH ACT, 18 U.S.C.A. § 2385,
which made it a crime to advocate the overthrow
of the government by force and violence.
In upholding the convictions, the Court applied
the clear-and-present-danger standard. Chief
Justice FRED M. VINSON, writing for the majority,
stated that in considering whether speech
could be prohibited, the Court must determine
“whether the gravity of ‘evil,’ discounted by its
improbability, justifies such invasion of free
speech as is necessary to avoid the danger.” The
Court’s approach was thus seen as a “balancing
test” that weighed free speech against the government’s
interest (e.g., in national security)
offered to justify restraints on free speech. The
Court’s new formulation of the clear-and-present-danger test was widely criticized by civil
libertarians for omitting the requirement of
proving imminent danger, as originally envisioned
by Holmes.
Eighteen years later, the Supreme Court
appeared to return to Holmes’s views in Brandenburg
v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23
L. Ed. 2d 430 (1969). In Brandenburg, the Court
reversed the conviction of a KU KLUX KLAN
leader under a state statute, Ohio Rev. Code
Ann. § 2923.13, prohibiting advocacy of crime
and violence as a necessary means to accomplish
political reform. The Court held that a state
could not “forbid or proscribe advocacy of the
use of force . . . except where such advocacy is
directed to producing imminent lawless action
and is likely to incite or produce such action.”
Though the Court’s opinion fails to mention
specifically the phrase clear and present danger,
many CONSTITUTIONAL LAW scholars have seen
Brandenburg as a return to the Holmes-Brandeis
immediacy test first set forth in Abrams. However,
the Court has not specifically addressed the
clear-and-present-danger doctrine since Brandenburg,
and thus it is not clear whether the
Court would embrace it anew or would fashion
an entirely new standard for determining
whether, in certain circumstances, free expression
can be punished.

FURTHER READINGS
Dow, David R., and R. Scott Shieldes. 1998. “Rethinking the
Clear and Present Danger Test.” Indiana Law Journal 73
(fall): 1217–46.
Elliott, Stephen P., ed. 1986. A Reference Guide to the United
States Supreme Court. New York: Facts on File.
Hopkins, W. Wat. 1995. “Reconsidering the ‘Clear and Present
Danger’ Test: Whence the ‘Marketplace of Ideas’?”
Free Speech Yearbook 33.
Levy, Leonard W. 1986. Encyclopedia of the American Constitution.
New York: Macmillan.
Schwartz, Bernard. 1994. “Holmes Versus Hand: Clear and
Present Danger or Advocacy of Unlawful Action?”
Supreme Court Review.
Witt, Elder. 1990. Guide to the U.S. Supreme Court. 2d ed.
Washington, D.C.: Congressional Quarterly.

CROSS-REFERENCES
Balancing.