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'Clear and present danger' is a term used by U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. in the majority opinion for the case ''Schenck v. United States'', , concerning speech against the draft during World War I:
Following ''Schenck v. United States'', "clear and present danger" became a standard test in cases 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 is language that poses a "clear and present danger." However, it should be noted that the "clear and present danger" criterion of the ''Schenck'' decision was later modified by ''Brandenburg v. Ohio,'' and the test refined to determining whether the speech would provoke an imminent lawless action.
The vast majority 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 British case The Queen v. Hicklin and incorporated into American jurisprudence in the 1904 Supreme Court case U.S. ex rel. Turner v. Williams. 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 entitled "Freedom of Speech in War Time" (32 Harv. L. Rev. 932 (1919)) argued despite context that Holmes had intended to substitute for the bad-tendency standard a more protective standard of free speech, clear and present danger. 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 ACLU 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'', perhaps the only time in history where a single legal scholar changed the course of jurisprudence. Significantly unlike ''Abrams'', the cases of ''Schenck'', ''Frohwerk'', and ''Debs'' had all produced unanimous decisions. Justice Brandeis soon began citing the "clear and present danger" test in his concurrences, but the new standard was not accepted by the full court until its official adoption in ''Brandenburg v. Ohio'' 50 years later.

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Research resources

See also

Research resources

★ First Amendment Library entry on ''Schenck v. United States''

★ First Amendment Library entry on Famous First Amendment Phrases: Origins

See also

★ Shouting fire in a crowded theater

★ Imminent lawless action