Clear and Present Danger Test in the United States

One of the standards used to determine if a particular expression is protected by the First Amendment. The clear and present danger test was first articulated in Schenck v. United States (249 U.S. 47: 1919), a case involving an Espionage Act prosecution for obstruction of military recruitment. The Supreme Court upheld Schenck’s conviction, saying that expression is a conditional freedom that must be evaluated in a situational context. It was in Schenck that Justice Oliver W. Holmes said in explaining this test that the freedom of speech could not be interpreted in such a way as to allow a person to shout “Fire!” in a crowded theater. Rather, each situation must be reviewed to determine whether expression occurs in such a way and is of “such nature as to create a clear and present danger that it will bring about the substantive evil that legislatures are empowered to prevent.” If speech is linked closely enough to illegal acts, the speech may be restricted. The Court said it was a matter of “proximity and degree.” See also Balancing Doctrine (Judicial Effects and Policies) Preferred Position Doctrine (Judicial Effects and Policies).

Analysis and Relevance

The clear and present danger test presumes that free speech is not an absolute right. The test is designed to justify interference with speech only when the government can show that the speech creates a danger both substantial and immediate. In this respect clear and present danger is a more demanding test for restrictive enactment than the “bad tendency” test. The bad tendency test allows restriction of expression if the expression could lead to unlawful ends. It and the clear and present danger test differ from the preferred position doctrine, which holds that any restrictive enactments are unconstitutional. The purpose of devices like the clear and present danger test is to aid the courts in balancing society’s interest in protecting itself and the individual’s interest in unrestricted expression.

Notes and References

1. Definition of Clear and Present Danger Test from the American Law Dictionary, 1991, California