Freedom of Speech - Prior Restraint

The Court uses a stringent standard when it evaluates statutes that impose a PRIOR RESTRAINT on speech. The test that is most frequently employed asks whether the prohibited activity poses a CLEAR AND PRESENT DANGER of resulting in damage to a legitimate government interest. Most often, the clear-and-present-danger doctrine has applied to prior restraints on the publication of materials thought to threaten national security. This test was first expressed by Justice Holmes in the Schenck case. Charles T. Schenck had been charged with violating the Espionage Act (Tit. 1, §§ 3, 4 [Comp. St. 1918, §§ 10212c, 10212d]) by distributing pamphlets that urged insubordination among members of the military. The Court held that his activities created "a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." The government's interest in maintaining national security and preventing dissension among the troops outweighed Schenck's interest in free speech.

The clear-and-present-danger test was extended during the 1950s, when widespread fear of COMMUNISM led to the passage of the SMITH ACT, 18 U.S.C.A. § 2385, which prohibited advocating the overthrow of the government. The act was challenged as a prior restraint on speech. It was upheld by the U.S. Supreme Court, which stated that the clear-and-present-danger test does not require the government to prove that a threat is imminent or that a plot probably would be successful (Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137[1951]).

The Dennis decision was criticized as weakening the clear-and-present-danger test and allowing the government too much freedom to restrict speech. These results were remedied somewhat in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969), in which the Court invalidated a statute that punished the advocacy of violence in industrial disputes. The Court held that the government cannot forbid the advocacy of the use of force unless that advocacy is directed to inciting imminent illegal activity and is likely to succeed.