Clear and present danger was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press, or assembly. Created by Justice Oliver Wendell Holmes Jr. to refine the bad tendency test, it was never fully adopted and both tests were ultimately replaced in 1969 with Brandenburg v. Ohio 's "imminent lawless action" test.
Before the 20th century, most restrictions on free speech issues in the United States were imposed to prevent certain types of speech. Although certain kinds of speech continue to be prohibited in advance, [1] dangerous speech started to be punished after the fact in the early 1900s, at a time when US courts primarily relied on a doctrine known as the bad tendency test . [2] Rooted in English common law, the test permitted speech to be outlawed if it had a tendency to harm public welfare. [2]
Antiwar protests during World War I gave rise to several important free speech cases related to sedition and inciting violence. In the 1919 case Schenck v. United States , the Supreme Court held that an antiwar activist did not have a First Amendment right to advocate draft resistance. [3] [4] In his majority opinion, Justice Oliver Wendell Holmes Jr. introduced the clear and present danger test, which would become an important concept in First Amendment law
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.
In Frohwerk v. United States (1919) Jusitce Holmes summarized comments critical of U.S. wartime policies written by a newspaperman and stated about these comments the following: "It may be that all this might be said or written even in time of war in circumstances that would not make it a crime. We do not lose our right to condemn either measures or men because the country is at war." [5] This statement "represents an important addendum to the original explication of the clear and present danger test in that it specifies that even during war, courts should regard criticism of government policies and officials as protected speech." [5]
The Schenck decision did not formally adopt the clear and present danger test. [3] Holmes later wrote that he intended the clear and present danger test to refine, not replace, the bad tendency test. [6] [7] Although sometimes mentioned in subsequent rulings, the clear and present danger test was never endorsed by the Supreme Court as a test to be used by lower courts when evaluating the constitutionality of legislation that regulated speech. [8] [9]
The Court continued to use the bad tendency test during the early 20th century in cases such as 1919's Abrams v. United States , which upheld the conviction of antiwar activists who passed out leaflets encouraging workers to impede the war effort. [10] In Abrams, Holmes and Justice Brandeis dissented and encouraged the use of the clear and present test, which provided more protection for speech. [11] In 1925's Gitlow v. New York , the Court made the First Amendment applicable against the states and upheld the conviction of Gitlow for publishing the "Left wing manifesto". [12] Gitlow was decided based on the bad tendency test, but the majority decision acknowledged the validity of the clear and present danger test, yet concluded that its use was limited to Schenck-like situations where the speech was not specifically outlawed by the legislature. [6] [13]
Brandeis and Holmes again promoted the clear and present danger test, this time in a concurring opinion in 1927's Whitney v. California decision. [6] [14] The majority did not adopt or use the clear and present danger test, but the concurring opinion encouraged the Court to support greater protections for speech, and it suggested that "imminent danger" –a more restrictive wording than "present danger" –should be required before speech can be outlawed. [15] After Whitney, the bad tendency test continued to be used by the Court in cases such as Stromberg v. California , which held that a 1919 California statute banning red flags was unconstitutional. [16]
The clear and present danger test was invoked by the majority in the 1940 Thornhill v. Alabama decision in which a state anti-picketing law was invalidated. [8] [17] Although the Court referred to the clear and present danger test in a few decisions following Thornhill, [18] [19] the bad tendency test was not explicitly overruled, [8] and the clear and present danger test was not applied in several subsequent free speech cases involving incitement to violence. [20] The importance of freedom of speech in the context of "clear and present danger" was emphasized in Terminiello v. City of Chicago (1949), [21] in which the Supreme Court noted that the vitality of civil and political institutions in society depends on free discussion. [22] Democracy requires free speech because it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. [22] Restrictions on free speech are permissible only when the speech at issue is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. [22] Justice William O. Douglas wrote for the Court that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." [22]
In May 1950, one month before the appeals court heard oral arguments in the Dennis v. United States case, the Supreme Court ruled on free speech issues in American Communications Association v. Douds . In that case, the Court considered the clear and present danger test, but rejected it as too mechanical and instead introduced a balancing test. [23] The federal appeals court heard oral arguments in the CPUSA case on June 21–23, 1950. Judge Learned Hand considered the clear and present danger test, but his opinion adopted a balancing approach similar to that suggested in American Communications Association v. Douds. [6] [24]
The defendants appealed the Second Circuit's decision to the Supreme Court in Dennis v. United States . The 6–2 decision was issued on June 4, 1951, and upheld Hand's decision. Chief Justice Fred Vinson's opinion stated that the First Amendment does not require that the government must wait "until the putsch is about to be executed, the plans have been laid and the signal is awaited" before it interrupts seditious plots. [25] In his opinion, Vinson endorsed the balancing approach used by Judge Hand: [26] [27] [28]
Chief Judge Learned Hand ... interpreted the [clear and present danger] phrase as follows: 'In each case, [courts] must ask whether the gravity of the "evil", discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.' We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.
Following Schenck v. United States , "clear and present danger" became both a public metaphor for First Amendment speech [29] [30] 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 , [31] and the test refined to determining whether the speech would provoke an "imminent lawless action".
The vast majority[ who? ] 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 . [32] 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. [33] 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. [34] Schenck, Frohwerk, and Debs all resulted in unanimous decisions, while Abrams did not.
For two decades after the Dennis decision, free speech issues related to advocacy of violence were decided using balancing tests such as the one initially articulated in Dennis. [35] In 1969, the court established stronger protections for speech in the landmark case Brandenburg v. Ohio , which held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action". [36] [37] Brandenburg is now the standard applied by the Court to free speech issues related to advocacy of violence. [38]
Schenck v. United States, 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes Jr., concluded that Charles Schenck, who distributed flyers to draft-age men urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense. The First Amendment did not protect Schenck from prosecution, even though, "in many places and in ordinary times, Schenck, in saying all that was said in the circular, would have been within his constitutional rights. But the character of every act depends upon the circumstances in which it is done." In this case, Holmes said, "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." Therefore, Schenck could be punished.
Dennis v. United States, 341 U.S. 494 (1951), was a United States Supreme Court case relating to Eugene Dennis, General Secretary of the Communist Party USA. The Court ruled that Dennis did not have the right under the First Amendment to the United States Constitution to exercise free speech, publication and assembly, if the exercise involved the creation of a plot to overthrow the government. In 1969, Dennis was de facto overruled by Brandenburg v. Ohio.
Brandenburg v. Ohio, 395 U.S. 444 (1969), is a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". Specifically, the Court struck down Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v. California (1927) was explicitly overruled, and Schenck v. United States (1919), Abrams v. United States (1919), Gitlow v. New York (1925), and Dennis v. United States (1951) were overturned.
Whitney v. California, 274 U.S. 357 (1927), was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society. Whitney was explicitly overruled by Brandenburg v. Ohio in 1969.
Gitlow v. New York, 268 U.S. 652 (1925), was a landmark decision of the United States Supreme Court holding that the Fourteenth Amendment to the United States Constitution had extended the First Amendment's provisions protecting freedom of speech and freedom of the press to apply to the governments of U.S. states. Along with Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), it was one of the first major cases involving the incorporation of the Bill of Rights. It was also one of a series of Supreme Court cases that defined the scope of the First Amendment's protection of free speech and established the standard to which a state or the federal government would be held when it criminalized speech or writing.
Abrams v. United States, 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the 1918 Amendment to the Espionage Act of 1917 which made it a criminal offense to urge the curtailment of production of the materials necessary to wage the war against Germany with intent to hinder the progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the Sedition Act of 1918.
"Imminent lawless action" is one of several legal standards American courts use to determine whether certain speech is protected under the First Amendment of the United States Constitution. The standard was first established in 1969 in the United States Supreme Court case Brandenburg v. Ohio.
"Shouting fire in a crowded theater" is a popular analogy for speech or actions whose principal purpose is to create panic, and in particular for speech or actions which may for that reason be thought to be outside the scope of free speech protections. The phrase is a paraphrasing of a dictum, or non-binding statement, from Justice Oliver Wendell Holmes Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919, which held that the defendant's speech in opposition to the draft during World War I was not protected free speech under the First Amendment of the United States Constitution. The case was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action.
Masses 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. The Second Circuit Court of Appeals overturned Hand’s ruling in Masses Publishing Co. v. Patten (1917).
Zechariah Chafee Jr. was an American judicial philosopher and civil rights advocate, described as "possibly the most important First Amendment scholar of the first half of the twentieth century" by Richard Primus. Chafee's avid defense of freedom of speech led to Senator Joseph McCarthy calling him "dangerous" to America.
In United States law, the bad tendency principle was a test that permitted 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 (1907), was seemingly overturned with the "clear and present danger" principle used in the landmark case Schenck v. United States (1919), as stated by Justice Oliver Wendell Holmes Jr. Yet eight months later, at the start of the next term in Abrams v. United States (1919), the Court again used the bad tendency test to uphold the conviction of a Russian immigrant who published and distributed leaflets calling for a general strike and otherwise advocated revolutionary, anarchist, and socialist views. Holmes dissented in Abrams, explaining how the clear and present danger test should be employed to overturn Abrams' conviction. The re-emergence of the bad tendency test resulted in a string of cases after Abrams employing that test, including Whitney v. California (1927), where a woman was convicted simply because of her association with the Communist Party. The court ruled unanimously that although she had not committed any crimes, her relationship with the Communists represented a "bad tendency" and thus was unprotected. The "bad tendency" test was finally overturned in Brandenburg v. Ohio (1969) and was replaced by the "imminent lawless action" test.
Terminiello v. City of Chicago, 337 U.S. 1 (1949), was a case in which the Supreme Court of the United States held that a "breach of peace" ordinance of the City of Chicago that banned speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" was unconstitutional under the First and Fourteenth Amendments to the United States Constitution.
Kunz v. New York, 340 U.S. 290 (1951), was a United States Supreme Court case finding a requirement mandating a permit to speak on religious issues in public was unconstitutional. It was argued October 17, 1950, and decided January 15, 1951, 8–1. Chief Justice Vinson delivered the opinion for the Court. Justice Black and Justice Frankfurter concurred in the result only. Justice Jackson dissented.
In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.
The Smith Act trials of Communist Party leaders took place in New York City from 1949 to 1958. These trials were a series of prosecutions carried out by the US federal government during the postwar period and the Cold War era, which was characterized by tensions between the United States and the Soviet Union. The leaders of the Communist Party of the United States (CPUSA) faced accusations of violating the Smith Act, a statute that made it illegal to advocate for the violent overthrow of the government. In their defense, the defendants claimed that they advocated for a peaceful transition to socialism and that their membership in a political party was protected by the First Amendment's guarantees of freedom of speech and association. The issues raised in these trials were eventually addressed by the US Supreme Court in its rulings Dennis v. United States (1951) and Yates v. United States (1957).
Sacher v. United States, 343 U.S. 1 (1952), was a United States Supreme Court case in which the Court upheld the convictions of five attorneys for contempt of court.
Frohwerk v. United States, 249 U.S. 204 (1919), was a United States Supreme Court case in which the Court upheld the conviction of a newspaperman for violating the Espionage Act of 1917 in connection with criticism of U.S. involvement in foreign wars.
Patterson v. Colorado, 205 U.S. 454 (1907), was a First Amendment case. Before 1919, the primary legal test used in the United States to determine if speech could be criminalized was the bad tendency test. Rooted in English common law, the test permitted speech to be outlawed if it had a tendency to harm public welfare. One of the earliest cases the Supreme Court heard addressing punishment after material was published was 1907's Patterson v. Colorado in which the Court used the bad tendency test to uphold contempt charges against a newspaper publisher who accused Colorado judges of acting on behalf of local utility companies.
The White Court refers to the Supreme Court of the United States from 1910 to 1921, when Edward Douglass White served as Chief Justice of the United States. White, an associate justice since 1894, succeeded Melville Fuller as Chief Justice after the latter's death, and White served as Chief Justice until his death a decade later. He was the first sitting associate justice to be elevated to chief justice in the Court's history. He was succeeded by former president William Howard Taft.
Hess v. Indiana, 414 U.S. 105 (1973), was a United States Supreme Court case involving the First Amendment that reaffirmed and clarified the imminent lawless action test first articulated in Brandenburg v. Ohio (1969). Hess is still cited by courts to protect speech threatening future lawless action.