Clear and present danger

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The "clear and present danger" test was adumbrated by Justice Oliver Wendell Holmes in a case arising during World War I: Schenck v. United States, 249 U.S. 47, 52 (1919), where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort.

The Court rejected this defense:

"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 Court also issued these decisions upholding convictions for criticism of American involvement in World War I:

  • Frohwerk v. United States, 249 U.S. 204 (Justice Holmes)
  • Debs v. United States, 249 U.S. 211 (Justice Holmes)
  • Abrams v. United States, 250 U.S. 616 (this time Justices Holmes and Brandeis dissented)
  • Schaefer v. United States, 251 U.S. 466, (Justice Brandeis dissented, joined by Justice Holmes)
  • Pierce v. United States, 252 U.S. 239 (again Justice Brandeis, joined by Mr. Justice Holmes, dissented).

These were the World War I cases that put the gloss of "clear and present danger" on the First Amendment.

In the late 1960s, Justices William O. Douglas and Hugo Black opposed this limit on the First Amendment, and in the Roberts Court after 2005 it is doubtful if the above cases are still good law.