Clear and Present Danger

• Author: Jeffrey Lehman, Shirelle Phelps

Page 431

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...