Justice Oliver Wendell Holmes's dissent in United States v. Abrams gave us the "marketplace of ideas" metaphor and the "clear and present danger" test. (1) Too often unremarked is the contradiction between the two. At the same time that Holmes says "the best test of truth is the power of the thought to get itself accepted in the competition of the market," he also says that "the present danger of immediate evil" permits Congress to restrict the expression of opinion. (2) When the anticipated harm comes about through acceptance of the speaker's idea, then the imposition of the clear and present danger test stops the operation of the marketplace of ideas. (3) The market is not free if the clear and present danger test intervenes right when an idea gains traction.
In Abrams, the "evil" that preoccupied Congress was the embrace of socialism and concomitant opposition to the World War I draft. The five defendants in Abrams had printed and distributed circulars aimed at persuading the market to accept the truth of their socialist perspective on the war. (4) Holmes concluded that the printing and distribution of the circulars did not present a clear and present danger. "[N]obody," he said, "can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so." (5) But had Holmes concluded that the leaflets did present a clear and present danger of persuading others of the truth of the defendants' perspective, such that opposition to the draft and other war activities increased by some unspecified degree, the clear and present danger test would have intervened to disrupt the "free trade in ideas" (6) that Holmes praised.
If sometimes the clear and present danger test seems to interrupt the free trade in ideas, there are instances in which it seems to provide more protection than necessary within the marketplace. John Stuart Mill gave the famous example of the speech against the corn dealer:
An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard. (7) Mill's hypothetical imagines that speech in front of the corn dealer's house, in front of an angry mob, may be punished. But intervention at that time may be too late. Likewise, Holmes argued that "falsely shouting fire in a theatre" is not protected by the First Amendment, but it is difficult to understand how to apply the clear and present danger test to such an utterance. (8) If the law is serious about prohibiting physical harm as a result of an exchange of ideas, the clear and present danger standard sometimes does too little too late.
If the marketplace of ideas and the clear and present danger test are in tension with each other, either one of them could be identified as the problem. The marketplace of ideas has received a great deal of criticism, but mostly about various forms of market failure. Less common is a rejection of the basic idea that, as human beings and subjects of the state, individuals have a strong interest in receiving information so that they may make their own decisions about what constitutes a good life and what constitutes good policy. Whether a completely unregulated speech market actually provides adequate information is another matter, but the basic claim to information is commonly accepted. If it remains so, then the clear and present danger test is an intervention that overrides this claim to information in some contexts. As such, it requires some justification.
For many years, the clear and present danger test received its share of criticism. (9) Recently, however, few have focused on its difficulties. This is, perhaps, because technically speaking it is no longer a current doctrinal standard, having been superseded in the context of incitement and subversive advocacy by the test set forth in Brandenburg v. Ohio (10) (and perhaps, with some uncertainty as to their remaining force, cases such as Yates v. United States, (11) Scales v. United States, (12) and Noto v. United States (13)). Yet the clear and present danger test is still with us. It is the shaping force behind Brandenburg and the dominant popular articulation of when incendiary or objectionable speech loses its protection. (14) It informs state laws on unlawful assembly and breach of the peace. (15) Also, when courts encounter speech for which the Supreme Court has not developed a clearly articulated standard, they often fall back on the principles of clear and present danger or Brandenburg, whether they make sense in the given area or not. (16)
If the clear and present danger test still exerts force, it also still carries the mysteries it has had since the beginning. The most frequent criticisms are that it is hard to apply and easy to manipulate. But problems in application are only the last of several along the line from conceptualizing to implementing the standard. In many ways, it raises as many questions as it answers. This Article addresses some of these questions.
CLEAR AND PRESENT DANGER, THEN AND NOW
The clear and present danger test originated in Schenck v. United States. (17) Holmes, writing for a unanimous Court upholding the defendants' convictions under the Espionage Act for overseeing the distribution of socialist leaflets, utilized the term "clear and present danger" in rejecting the claim that the convictions violated the First Amendment. (18) In doing so, Holmes articulated an approach to subversive advocacy rooted in his views on criminal attempt:
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. ... If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. (19) In The Common Law, Holmes had suggested that liability for criminal attempt and other inchoate crimes required both criminal intent and action that came close to achieving a crime. (20) Thus, if a speaker intended to bring about an unlawful occurrence, and his speech created a clear and present danger of that occurrence, then the speech could be punished. The upshot of applying a standard for liability for inchoate crimes was that Holmes did not understand the First Amendment to provide additional protections in this situation beyond those offered by general criminal law principles. Clear and present danger was part of the exact same standard of liability that he would have applied in cases of criminal attempt, whether or not speech was involved.
Holmes's views changed between Schenck and Abrams, as has been documented exhaustively. (21) At the encouragement of Professor Zechariah Chafee, Jr., Holmes repurposed clear and present danger into a First Amendment standard that drew a line between protected speech and unprotected subversive advocacy:
I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.... ... It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. (22) Later cases would largely forget Holmes's suggestion that intent to cause harm was an independent and sufficient basis on which to restrict advocacy. The likelihood of a clear and present danger would come to occupy the field.
Indeed, during the 1940s, the Supreme Court suggested that "clear and present danger" could function as an all-purpose test to determine the scope of free speech protection. For example, discussing "peaceful and truthful discussion of matters of public interest," the Court in Thomhill v. Alabama said, "abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion." (23) This formulation suggests that clear and present danger is the standard for all regulations that abridge truthful and peaceful discussion-apparently including time-place-manner regulations, obscenity regulations, and so forth. (24) This proposition was almost immediately put to the test in several contexts, including picketing and obscenity, where the Court began to develop other standards. (25)
Developments in the 1950s and 1960s led many to conclude that the clear and present danger test was no longer good law, even in its core area of operation. Beginning with Dennis v. United States, the Supreme Court for a time embraced Chief Judge Learned Hand's reformulation of the test. (26) Although Hand claimed to be applying the clear and present danger standard, and although the Supreme Court in Dennis seemingly took him at his word, commentators noticed a strong divergence. Hand transformed the clear and present danger test into straightforward cost-benefit analysis-into, in fact, the Hand formula that he also applied in United States v. Carroll Towing Co. and other torts cases to define negligent conduct. (27) Alexander Meiklejohn and Thomas Emerson concluded that the test had been abandoned. (28) Justice Brennan, writing in 1965, observed, "[t]here...