The Evolution of First Amendment Tests

“Clear and present danger” – the ambiguous test adopted in landmark case Schenck v. Unites States by Justice Holmes. It determines under which circumstances First Amendment limits apply.

The country was deeply divided in 1919 when the U.S. entered into the Great War. The war, opposed by radical leftists and German sympathizers, was a time when the First Amendment was brought into question.

In Schenck, the Court chose not to protect the First Amendment rights of men who distributed anti-draft leaflets to young men, promoting resistance to the war. Based on the idea that their actions could impede the war effort, the Court upheld the conviction calling it a clear and present danger.

This clear and present danger test adopted in Schenck meant Congress had a right to prevent speech used in circumstances, such as wartime, that create a clear and present danger to bring about basic evils. However, weeks later in a similar case, Justice Holmes dissented in Abrams v. U.S. on the means that the defendants didn’t have the necessary means and specific intent to “cripple the U.S. in the prosecution of the war.”

Six years later, in Gitlow v. New York, the Court upheld conviction based on the rationale of the bad tendency test, saying a state may forbid speech or publication if it might result in dangerous action even if the danger isn’t clear or present. The majority stated:

“A state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace.”

Dissenters believed the criteria established in Schenk should apply to the case, meaning the clear and present danger test should be used rather than the bad tendency test. Holmes argued that the writings present no danger to violently overthrow the government.

Brandeis and Holmes in 1927 promoted the clear and present danger test in Whitney v. California, but encouraged even more freedoms this time. They adjusted the language from “present danger” to “imminent danger” to support greater protections for speech.
The clear and present danger test was adopted and used by the majority in 1940, but rejected in 1950 in Dennis v. U.S. when they adopted the “balancing test.” This variation of clear and present danger meant that in each case, the Court could decipher whether the “gravity of evil, discounted by its improbability, justified such invasion of speech as is necessary to avoid danger.” This led the court to consider many different factors in each case, deciding whether it is appropriate to take privileges when compared to the likelihood of success. This balancing test was used for two decades.

Today, the courts use a variation of the clear and present danger test that is narrower, with less freedom for the courts to interpret, as is their preference. The courts do not like ambiguity, and have applied a standard established in Brandenburg, which holds, “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action.”

SOURCES: Wikipedia: “Clear and Present Danger,” “Schenck v. U.S.,” “Abrams v. U.S.”


One thought on “The Evolution of First Amendment Tests

  1. Aubree, what do you think about the Memes that President Trump (and his family) have tweeted? CNN has obliviously been the target of the #FakeNews campaign and after they allegedly blackmailed a Redditor, a meme Jihad was placed on them by the internet.

    I think we can agree that /pol identifying and posting private information of CNN employees is obviously wrong, but do you think the Supreme Court would find POTUS tweets to be “inciting or producing imminent lawless action” as some of the CNN mouth pieces would like to claim?


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