Clear and present danger

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For the book, see Clear and Present Danger. For its film adaptation, see Clear and Present Danger (film).

Clear and present danger is a term used by Justice Oliver Wendell Holmes, Jr. in the majority opinion for the case Schenck v. United States, [1] concerning 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, it should be noted that the "clear and present danger" criterion of the Schenck decision was later modified 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 British case The Queen 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 entitled "Freedom of Speech in War Time" (32 Harv. L. Rev. 932 (1919)) 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 ACLU 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[5] just six months after Schenck, perhaps the only time in history where a single legal scholar changed the course of jurisprudence. 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 50 years later.

[edit] 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). 
  3. ^ Tsai, Robert L.. "Fire, Metaphor, and Constitutional Myth-Making". Tne Georgetown Law Journal 93 (181): 181-239. 
  4. ^ Brandenburg v. Ohio 395 U.S. 444 (1969).
  5. ^ Abrams v. United States, 250 U.S. 616 (1919).

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