Clear and Present Danger

• Author: Martin Shapiro
• Pages: 426-428

Page 426

The clear and present danger rule, announced in SCHENCK V. UNITED STATES (1919), was the earliest FREEDOM OF SPEECH doctrine of the Supreme Court. Affirming Schenck's conviction, Justice OLIVER WENDELL HOLMES concluded that a speaker might be punished only when "the words 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." Holmes was drawing on his own earlier Massachusetts Supreme Judicial Court opinion on the law of attempts. There he had insisted that the state might punish attempted arson only when the preparations had gone so far that no time was left for the prospective arsonist to change his mind, so that the crime would have been committed but for the intervention of the state. In the free speech context, Holmes and Justice LOUIS D. BRANDEIS assimilated this idea to the MARKETPLACE OF IDEAS rationale, arguing that the best corrective of dangerous speech was more speech rather than criminal punishment; government should intervene only when the speech would do an immediate harm before there was time for other speech to come into play.

In the context of Schenck, the danger rule made particular sense; the federal statute under which the defendant was prosecuted made the act of espionage a crime, not the speech itself. The danger rule in effect required that before speech might be punished under a statute that forbade action, a close nexus between the speech and the action be shown. The concentration of the rule on the intent of the speaker and the circumstances surrounding the speech also seem most relevant in those contexts in which speech is being punished as if it constituted an attempt at a criminal act. Opponents of the danger rule have often insisted that Holmes initially intended it not as a general FIRST AMENDMENT test but only for cases in which a statute proscribing action was applied to a speaker.

In Schenck, Holmes wrote for the Court. The most extended statement of the danger rule came some months later in ABRAMS V. UNITED STATES (1919), but by then it was to be found in a Holmes dissent, joined by Brandeis. In GITLOW V. NEW YORK (1925) the Court used the BAD TENDENCY TEST which openly rejected the imminence or immediacy element of the danger rule?again over dissents by Holmes and Brandeis. Brandeis kept the danger rule alive in a concurrence in WHITNEY V. CALIFORNIA (1927) in which he added to the immediacy requirement that the threatened evil be serious. The danger of minor property damage, for example, would not justify suppression of speech.

In the 1930s and 1940s the Court was confronted with a series of cases involving parades and street corner speakers in which the justification offered for suppressing speech was not concern for the ultimate security of the state but the desire to maintain peaceful, quiet, and orderly streets and parks free of disturbance. Behind the proffered justifications usually lurked a desire to muzzle unpopular speakers while leaving other speakers free. In this context the clear and present danger rule was well designed to protect unpopular speakers from discrimination. It required the community to prove that the particular speaker whom it had punished or denied a license did in fact...