Clear and Present Danger

An early standard by which the constitutionality of laws regulating subversive expression were evaluated in light of the First Amendment's guarantee of FREEDOM OF SPEECH.

Justice OLIVER WENDELL HOLMES JR., writing 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 create 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. history when the FIRST AMENDMENT often clashed with the government's interest in maintaining order and morale during wartime. Various formulations of the doctrine have appeared in other significant Supreme Court decisions throughout the years.

In Schenck, the defendants had been convicted 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 statements with the intent to interfere with the operation 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 secretary of the Socialist party, and the other defendants 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 protected 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 circumstances 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 revisited 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 statement of the clear-and-present-danger test. Concerned about a rising tide of hysteria that could potentially impinge on free expression, Holmes argued for a broader interpretation of the clear-and-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 over-throw 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.