Clear and present danger

Definition

Clear and present danger is a legal doctrine used to determine when speech or actions can be limited by the government due to the potential for inciting harm or illegal activities. This principle emerged from First Amendment jurisprudence, emphasizing that certain forms of expression are not protected if they pose an immediate threat to public safety or national security.

5 Must Know Facts For Your Next Test

1. The clear and present danger test was first articulated in Justice Oliver Wendell Holmes Jr.'s opinion in Schenck v. United States, where he stated that falsely shouting fire in a crowded theater is not protected speech.
2. This doctrine is not a blanket restriction on free speech; rather, it is a balancing act between individual rights and public safety.
3. Subsequent cases have refined the clear and present danger standard, often replacing it with a more lenient 'imminent lawless action' test established in Brandenburg v. Ohio.
4. The clear and present danger standard underscores the limits of First Amendment protections, especially during times of war or national emergency.
5. This concept has been pivotal in debates over hate speech, political dissent, and other controversial forms of expression that could potentially lead to societal unrest.

Review Questions

• How did the case of Schenck v. United States establish the clear and present danger test, and what implications did this have for free speech?
  • In Schenck v. United States, the Supreme Court ruled that Charles Schenck's distribution of anti-draft leaflets created a clear and present danger to recruitment efforts during World War I. This ruling established that free speech could be restricted when it poses an immediate threat to public order or national security. The case set a precedent for evaluating the limits of free expression in relation to potential harm, influencing future legal interpretations of the First Amendment.
• Discuss how the clear and present danger test has evolved over time and its significance in modern First Amendment jurisprudence.
  • Over time, the clear and present danger test has evolved, particularly with the introduction of the 'imminent lawless action' standard in Brandenburg v. Ohio. This shift reflects a more protective stance on free speech, requiring a direct link between speech and immediate unlawful action for restrictions to be justified. The evolution highlights ongoing tensions between safeguarding free expression and addressing threats to public safety within First Amendment law.
• Evaluate the implications of the clear and present danger doctrine on contemporary issues surrounding hate speech and political dissent in society.
  • The clear and present danger doctrine has significant implications for contemporary debates over hate speech and political dissent. As society grapples with issues related to freedom of expression, this doctrine serves as a legal framework for determining when speech crosses the line into incitement or threats against public safety. The challenge lies in balancing protection against harmful rhetoric while preserving fundamental rights, making this an ongoing area of legal contention as new forms of communication emerge in a digital age.

Related terms

First Amendment:

The First Amendment of the United States Constitution protects several fundamental rights, including freedom of speech, religion, press, assembly, and petitioning the government.

Incitement: Incitement refers to the act of encouraging or provoking others to engage in unlawful or violent behavior, which can sometimes lead to legal consequences under certain circumstances.

Schenck v. United States:

A landmark Supreme Court case from 1919 that established the clear and present danger test, determining that speech can be restricted if it creates a significant risk of inciting illegal actions.