"THIS WEARISOME ANALYSIS": THE CLEAR AND PRESENT DANGER TEST FROM SCHENCK TO BRANDENBURG.

• Date: 22 March 2021
• Author: McGoldrick, James M., Jr.

1. INTRODUCTION 58 II. THE EARLY DEVELOPMENT--FROM BAD TENDENCIES TO "THE MASSES" 59 III. SCHENCK, FROHWERK, AND DEBS--THE CRUEL TRIFECTA 65 IV. ABRAMS V. UNITED STATES--A DIFFERENT HOLMES AND BRANDEIS 71 V. GITLOW V. NEW YORK REARS ITS UGLY HEAD 75 VI. JUSTICE BRANDEIS'S CONCURRING OPINION IN WHITNEY V. CALIFORNIA 78 VII. DE JONGE AND HERNDON--THE EARLY TASTE OF VICTORY FOR FREE SPEECH 83 VIII. THE CLEAR AND PRESENT DANGER TEST AND MUNDANE THINGS LIKE KEEPING STREETS CLEAN AND OBSCENITY IX. BRIDGES V. CALIFORNIA, THE 'CLERK AND PRESENT 90 DANGER' TEST 96 X. DENNIS V. UNITED STATES, THE DISCOUNT VERSION 98 XI. BRANDENBURG V. OHIO, THE FINAL CHAPTER 104 XII. CONCLUSION 107 The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. Justice Holmes, Schenck v. United States, 249 U.S. 47, 52 (1919).

   Free speech is the right to shout "theater" in a crowded fire.

   Abbie Hoffman (3)

1. INTRODUCTION

   If it is true that most people only retain about five minutes' worth of their college-acquired knowledge, (4) then for law students, that might consist of "the thin-skulled plaintiff in torts, perhaps "the fertile octogenarian" in property, (5) the case of the pregnant cow in contracts, maybe the "breaking and entering rule" for burglary, possibly Erie v. Tompkins in Civil Pleading, and certainly in Constitutional Law that one cannot falsely shout fire in a crowded theater. The "shouting fire" illustration even entered the popular culture, from radical hippies to avant-garde comedians. But the importance of the underlying "clear and present danger" test may have been lost.

   In 1919 in Schenck v. United States, Justice Oliver Wendell Holmes, Jr., gave birth to the beginning of the modern level of protection given to free speech. (6) After his famous "shouting fire" hypothetical to illustrate that speech was not always protected, he wrote that the key question was whether the words were "used in such circumstances and are of such a nature as to create a clear and present danger" of some substantive evil. (7) Now one hundred years hence, the "clear and present danger" test no longer has the potency that it once had, having long since been replaced by the "compelling state interest" test. (8) But if any test deserved to have its centennial memorialized, it is the clear and present danger test. (9)

2. THE EARLY DEVELOPMENT--FROM BAD TENDENCIES TO "THE MASSES"

   From the time the First Amendment (10) was added to the Constitution in 1789 until 1919, there was little acknowledgement that the prohibition on Congress "abridging the freedom of speech" might protect anything other than perhaps prior restraints. (11) Part of the lack of early development was due, no doubt, to the fact that the First Amendment, as well as the other provisions of the first ten amendments, the so-called Bill of Rights, applied only to Congress. (12) Absent some provision in their own state constitutions, (13) individual states were freed from all of the restrictions of free speech. Only with the passage of the Fourteenth Amendment (14) in 1868 and through the gradual incorporation of the most important provisions of the Fourteenth Amendment to the states through the due process clause of the Fourteenth Amendment did most of the Bill of Rights come to be applied to the states. (15) The First Amendment was the first to be made applicable to the states, but that did not occur until 1925 in Gitlow v. New York, (16) and then only in that it was assumed that it did apply before the Court concluded in the case that in any event free speech was not violated. (17) But that assumption was enough in that thereafter, the Court cited Gitlow for the proposition that the First Amendment did apply to the states. (18)

   Although most laws of all types and certainly laws affecting free speech were passed by the various states, Schenck involved the federal Espionage Act of 1917. Dean Stone nicely summarized the Act:

   The Espionage Act of 1917 was directed primarily toward such matters as espionage and the protection of military secrets. (19) Several provisions, however, were relevant to the freedom of speech.... [T]he Act made it a crime, when the nation is at war, for any person willfully to "make or convey false reports or false statements with intent to interfere" with the military success of the United States or "to promote the success of its enemies"; willfully to "cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States"; or willfully to "obstruct the recruiting or enlistment service of the United States." Violations were punishable by prison sentences of up to twenty years. The Act also authorized the Postmaster General to exclude from the mails any writing or publication that is "in violation of any of the provisions of this act" or that contains "any matter advocating or urging treason, insurrection or forcible resistance to any law of the United States." (20) As pointed out by Dean Stone, the operative approach in the lower courts at the time of Schenck 's clear and present danger test was something called the "bad tendency" test. (21) Stone's primary illustration was the 1919 Ninth Circuit case Shaffer v. United States, (22) where the defendant was convicted of violating the Espionage Act for mailing several copies of a book critical of the United States' entering World War I against the Germans. The Court admitted that "disapproval of war and the advocacy of peace are not crimes under the Espionage Act," but it did not matter if the book was a statement of opinion or fact; the only question was "whether the natural and probable tendency and effect of the words quoted therefrom are such as are calculated to produce the result condemned by the statute." (23) As Dean Stone stated, "This approach was embraced by almost every federal court that interpreted the Espionage Act during the course of the war. Judges routinely allowed juries to decide whether a defendant's speech violated the Act, and juries routinely returned a verdict of guilty." (24)

   The most famous exception in the lower courts to the "bad tendency" test was District Judge Learned Hand's decision in the 1917 case Masses Publication Co. v. Patten. (25) It may only be Judge Hand's brilliance as a judge that made Masses famous beyond any actual impact that it had. (26) Hand's injunction against the application of the Espionage Act was stayed, and his opinion itself was reversed just a little more than three months later by the Second Circuit. (27) Masses seems famous largely because some of the most widely used casebooks in Constitutional Law implied that it was by including it adjacent to Schenck and other seminal clear and present danger Supreme Court cases. Despite its fame, Justice Hand's opinion in Masses has never been cited by any United States Supreme Court majority opinion. Arguably, even though the case had no actual importance, it may have been influential in the Brandenburg v. Ohio incitement test, generally thought of as the modern version of the clear and present danger test.

   In Masses, the United States Postmaster General used his authority under the Espionage Act to prevent the monthly so-called revolutionary magazine The Masses from using the United States Postal system. In a pre-opinion statement of the facts, the contents of the magazine's various essays and cartoons were described, and then the Court summarized the rest: "Throughout the rest are sprinkled other texts designed to arouse animosity to the draft and to the war, and criticisms of the President's consistency in favoring the declaration of war." (28)

   Judge Hand said that "there has always been a recognized limit" to free speech and interpreted the Espionage Act to reach only "direct incitement to violent resistance." (29) He said, "One may not counsel or advise others to violate the law as it stands." (30) In this he was basically restating the common law for incitement. Under the common law of incitement, also called solicitation, asking the ubiquitous off-duty police officer in a bar to "murder my wife, please" is punishable as an inchoate form of the crime of murder, like attempted murder. (31) Words disparaging the draft could not be punished, only the direct incitement to obstruct the draft. (32) Judge Hand acknowledged that encouraging illegal acts "may be accomplished as well by indirection as expressly...," (33) As Judge Hand concluded, "If one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation." (34) He concluded that The Masses magazine had no such direct incitement. Judge Hand's interpretation of the Act avoided the more difficult free speech issue that he said would have been presented if Congress meant to include political agitation. (35) The Second Circuit disagreed with Judge Hand's interpretation of the Act and concluded that the Postmaster General had the authority to ban the mailing of the magazine. (36) Even though Judge Hand's holding was stayed and his decision reversed, it seems to be reflected in the modern version of the clear and present danger test in Brandenburg v. Ohio, which has as one of its elements "advocacy of the use of force or of law violation...." (37)

3. SCHENCK, FROHWERK, AND DEBS--THE CRUEL TRIFECTA

   In three 1919 cases, Justice Holmes upheld the application of the Espionage Act to speech that in all probability threatened no one. (38) Only Schenck actually used the "clear and present danger" phrase. (39) Defendant Charles T. Schenck was the general secretary of the Socialist Party, and his co-defendant Dr. Elizabeth Baer was the secretary that took the minutes at the meeting approving the disputed leaflet in the case to accomplish "the grand inquest unknown." (40) Schenck sent out more than 15,000 copies of a leaflet...