Clear and present danger test

Definition

The clear and present danger test is a legal standard used to determine when speech can be limited under the First Amendment. It assesses whether the speech in question presents a significant and immediate threat to society or public safety, allowing for restrictions in instances where such dangers are apparent. This test emphasizes the context in which speech occurs, considering the likelihood that it will lead to harmful actions.

5 Must Know Facts For Your Next Test

1. The clear and present danger test originated from the Supreme Court case Schenck v. United States in 1919, where Justice Oliver Wendell Holmes Jr. articulated this principle.
2. This test requires a balancing act between the right to free speech and the need to maintain public order and safety.
3. Under this test, speech can be restricted if it incites imminent lawless action or poses a significant risk of harm to others.
4. The clear and present danger test was later modified by the Supreme Court in subsequent rulings, leading to a more nuanced approach toward regulating speech.
5. The test is often contrasted with the 'imminent lawless action' standard established in Brandenburg v. Ohio, which set a higher bar for restricting speech.

Review Questions

• How did the clear and present danger test evolve from its original formulation in Schenck v. United States?
  • The clear and present danger test was first established in Schenck v. United States as a way to justify limiting speech during wartime when it posed a risk of harm. Over time, this test evolved as courts began to recognize the importance of protecting free expression, even in controversial contexts. This evolution led to more stringent requirements for justifying restrictions on speech, notably influenced by later cases like Brandenburg v. Ohio, which moved towards requiring evidence of imminent lawless action.
• Discuss how the clear and present danger test impacts contemporary free speech issues.
  • The clear and present danger test significantly influences contemporary discussions about free speech, particularly in cases involving hate speech, protests, and national security. It requires courts to assess whether certain expressions pose an immediate threat that justifies intervention. This balancing act continues to be crucial in legal debates about how far free speech can go without crossing into harmful territory, shaping modern interpretations of what constitutes protected speech versus actionable threats.
• Evaluate the effectiveness of the clear and present danger test in safeguarding both free expression and public safety.
  • Evaluating the effectiveness of the clear and present danger test involves weighing its role in protecting individual rights against the necessity for public safety. While it has historically provided a framework for limiting dangerous speech, critics argue that its application can lead to overly broad censorship and stifle legitimate discourse. The challenge lies in applying this standard consistently while ensuring that freedom of expression is not unduly compromised, especially as societal values and contexts evolve over time.

Related terms

First Amendment:

The constitutional amendment that protects freedoms concerning religion, expression, assembly, and the right to petition.

seditious speech: Speech that incites rebellion against the authority of a state or government, often subject to restrictions under the clear and present danger test.

Brandenburg v. Ohio: A landmark Supreme Court case that established a new standard for free speech, moving away from the clear and present danger test to a more protective standard for speech inciting illegal action.