Clear and present danger

Definition

Clear and present danger is a legal standard used to determine when speech or actions can be limited or restricted under the First Amendment. It evaluates whether the expression poses a significant and immediate threat to public safety or national security, allowing for restrictions in situations where such dangers are evident. This concept emphasizes balancing free speech rights with the necessity of protecting societal interests.

5 Must Know Facts For Your Next Test

1. The clear and present danger test was first articulated by Justice Oliver Wendell Holmes Jr. in the 1919 case Schenck v. United States.
2. This legal standard allows for the restriction of speech when it presents an immediate threat, such as shouting 'fire' in a crowded theater when there is no fire.
3. The clear and present danger doctrine has evolved over time, with later cases like Brandenburg v. Ohio shifting towards more protection for free speech.
4. The application of this standard often sparks debate over what constitutes a legitimate threat versus free expression.
5. While the clear and present danger test has been pivotal in shaping First Amendment jurisprudence, it has faced challenges and modifications through various Supreme Court rulings.

Review Questions

• How did the ruling in Schenck v. United States establish the clear and present danger test, and what implications did this have for free speech?
  • The ruling in Schenck v. United States established the clear and present danger test by determining that speech could be limited if it created a significant risk of harm to public safety. In this case, Justice Holmes stated that during wartime, certain expressions might pose greater threats than during peacetime, thereby justifying restrictions on free speech under specific circumstances. This set a precedent for evaluating the balance between maintaining public order and protecting individual rights under the First Amendment.
• Discuss how the evolution of the clear and present danger standard reflects changes in societal values regarding free speech.
  • The evolution of the clear and present danger standard demonstrates a shift towards greater protection of free speech rights over time. Initially established to limit expressions deemed threatening during World War I, later cases like Brandenburg v. Ohio refined this concept by asserting that speech could only be restricted if it incited imminent lawless action. This shift indicates a growing recognition of the importance of free expression in democratic society, even when such expressions are controversial or unpopular.
• Evaluate the significance of the clear and present danger test in contemporary discussions about hate speech and national security.
  • The clear and present danger test remains significant in contemporary discussions about hate speech and national security as it raises critical questions about where to draw the line between free expression and harmful rhetoric. As societies grapple with issues like terrorism or domestic extremism, courts must consider whether certain forms of speech truly pose an immediate threat to safety or if they fall within protected expression. This ongoing evaluation underscores the delicate balance between safeguarding civil liberties while ensuring public safety, making the clear and present danger standard a focal point in First Amendment debates today.

Related terms

Schenck v. United States:

A landmark Supreme Court case that established the clear and present danger test, ruling that speech can be limited if it creates a substantial risk of harm.

First Amendment:

The constitutional amendment that protects freedoms of speech, religion, press, assembly, and petition, forming the foundation of American civil liberties.

Brandenburg v. Ohio: A Supreme Court case that refined the clear and present danger standard, establishing that inflammatory speech is protected unless it incites imminent lawless action.