Clear and Present Danger Doctrine
The Clear and Present Danger Doctrine is a legal principle that addresses the balance between individual First Amendment rights and the government's ability to restrict speech that poses a significant threat to public safety or national security. Developed by Justice Oliver Wendell Holmes, Jr. during the 1919 Supreme Court case Schenck v. United States, this doctrine asserts that speech can be limited if it creates a clear and present danger of causing substantive evils that the government is justified in preventing. Holmes famously illustrated this with the example of falsely shouting "fire" in a crowded theater, which could incite panic.
The doctrine requires the government to demonstrate both intent to cause harm and a direct causal link between the speech and the potential danger. Over time, the application of this doctrine has evolved, with subsequent cases showing a shift towards a lower burden of proof for the government, especially during periods of heightened national security concerns. Notable cases have tested this doctrine in various contexts, including the rights of extremist groups to assemble and the dissemination of sensitive information online. Overall, the Clear and Present Danger Doctrine remains a fundamental aspect of American constitutional law, guiding courts in determining the limits of free expression in the face of potential threats.
Clear and Present Danger Doctrine
Definition: A legal test to decide whether certain kinds of speech are protected by the First Amendment of the U.S. Constitution
Significance: This test permits restraint of the First Amendment freedoms of speech and press only where there is an immediate threat to what the government may legitimately protect
The need to balance the interests of society against the rights of the individual is one of the great themes of American constitutional law. The balancing process is never an easy one; however, it is particularly difficult where the security of the nation is juxtaposed against fundamental First Amendment freedoms. Supreme Court efforts to achieve a workable balance have produced several tests for determining when governments may restrain speech.
The first and most famous of these tests, the clear and present danger doctrine, was developed by Justice Oliver Wendell Holmes in a case arising under the World War I Espionage Act of 1917. Writing for the Supreme Court in Schenck v. United States (1919), Justice Holmes adopted a nonabsolutist interpretation of First Amendment rights. “The character of every act,” he noted, “depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting ’fire’ in a theater, and causing a panic. . . . 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.”
Although the clear and present danger test was used in Schenck v. United States to sustain wartime restrictions of speech and press, it is actually a demanding test of government’s ability to restrain fundamental freedoms. First, the state must demonstrate an intent to cause the evils that governments may legitimately prevent; then it must prove that the accused’s activities caused, or would have caused, those evils to occur. By contrast, most other tests fashioned by the Supreme Court in this area have been more favorably disposed toward sustaining government action. The “bad tendency” test fashioned a year after the Schenck decision, for example, essentially reduced the government’s burden of proof to showing that the proscribed activities have a tendency to result in antisocial or antigovernment behavior (Schaefer v. United States, 1920; Gitlow v. New York, 1925). Likewise, in the Cold War case of Dennis v. United States (1951), the Supreme Court dropped the immediacy requirement of the clear and present danger in sustaining national security legislation aimed at countering the threat posed to the country by the international criminal conspiracy represented by the Communist Party of the United States. Where such conspiracies exist, the Supreme Court held, the state need only show the probability that, over time, proscribed activities might endanger the United States.
The clear and present danger rule has remained a basic judicial tool used by courts in trying to draw the ever difficult line between what the government may legitimately restrain and what the First Amendment protects. Famous cases testing the clear and present danger rule have ranged from the right of neo-Nazis to march through a predominantly Jewish neighborhood to the right of computer users to disseminate bomb-building instructions over the Internet.