What Was the Clear and Present Danger Test for Free Speech — and Why Has It Been Replaced?

Long before “Clear and Present Danger” was a 1994 movie starring Harrison Ford, and before it was a 1989 Tom Clancy thriller novel featuring CIA agent Jack Ryan, it was a test used by the U.S. Supreme Court in some First Amendment free speech cases.

This article will explain what the clear and present danger test was, where it came from, and what newer standard the Supreme Court uses now.

What was the clear and present danger test?

The clear and present danger test was a way the Supreme Court at one time determined some free speech cases. Under this test, the court said speech could be limited if there was a threat of “substantial evil” from the speech that was real and imminent.

The origin of the test is a 1919 case in which the Supreme Court said the 1917 Espionage Act was constitutional and did not violate the First Amendment’s protection of free speech.

Charles Schenck was an activist who had been convicted under the Espionage Act for mailing pamphlets that were critical of U.S. involvement in World War I and of the draft. Schenck argued that his free speech and free press rights were violated when he was punished for this criticism. However, he lost his case at the Supreme Court. The court said that because it was wartime, the speech could be limited if it created a “clear and present danger.”

Justice Oliver Wendell Holmes described the court’s reasoning (emphasis added):

“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. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

How was the clear and present danger test used by the Supreme Court?

Less than a year after the court first established the clear and present danger test in the Schenck case, it heard another case in which the test would be key.

In Abrams v. U.S., the court heard the case of a group convicted for distributing pamphlets critical of U.S. military involvement in Russia. Just like in Schenck’s case, the court ruled against the group, citing the clear and present danger test.

However, Holmes was one of two justices to disagree. He criticized the court for how it applied the test he had outlined before. He said the court in this case used it to limit too much speech. He said speech critical of U.S. government policy should be more protected:

“It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.”

Thomas Healy, author of a book about Holmes’ dissenting opinion, said that this minority view later “changed the history of free speech in America” and enabled political views to be more protected — but not for some time.

In Gitlow v. New York (1925), Holmes again disagreed with the court when it upheld the conviction of political dissident Benjamin Gitlow for distributing a manifesto calling for the overthrow of the government. Gitlow said no one acted on his publication, but the court said that the government could punish this type of speech that threatened the very existence of government. Holmes and Justice Louis Brandeis said the speech wasn’t a clear and present danger. Holmes and Brandeis noted that Gitlow’s manifesto was seen as an “incitement.” But, in their eyes, “every idea is an incitement,” which is why there must be some actual threat to punish speech.

Two years later, the Supreme Court again used the clear and present danger test. Charlotte Whitney went to a Communist Labor Party meeting. She was arrested and charged under a state law against joining a group that wanted to use violence to bring about political change. In Whitney v. California, she claimed that the law violated First Amendment rights. She said she just wanted to learn about the group’s views.

The court unanimously said that the law and the punishment did not violate First Amendment rights. The court said words with a “bad tendency” could be punished.

Once again, Holmes and Brandeis disagreed. They said that the ruling was correct — creating the unanimous ruling — but they had a different view of the reasoning. They said the court should not be using the clear and present danger test, and that there was not a severe, probable or imminent risk of harm from Whitney’s actions:

“To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.”

Why was the clear and present danger test abandoned?

Almost as soon as the court created the clear and present danger test, Justice Holmes, the author of the ruling that established it, disagreed with how the court applied the test.

Holmes disagreed with the court in several rulings related to the test, prompting the court to find a different way to determine when potentially dangerous speech loses free speech protection.

The clear and present danger test, the court eventually found, wasn't defined well enough. It could be — and often was — applied to a wide range of speech, depending on how it was enforced and interpreted. This made it less protective of speech, especially political speech, than a more specifically defined test would be.

The Supreme Court tends to work incrementally, taking past standards and precedents and refining them. The court did so for the clear and present danger test throughout the 1950s, sometimes using other measures like a “gravity of the evil” test, which refined the clear and present danger test by considering how likely and how severe the potential danger was — as Holmes had suggested in his disagreements with how the court used the test in the 1920s.

What is the replacement for the clear and present danger test?

In 1969, the Supreme Court heard the case of Ku Klux Klan leader Clarence Brandenburg, who had spoken at a Klan rally about “revengeance” on the government. He was convicted under an Ohio law that prohibited speech and assembly advocating for illegal activities.

In Brandenburg v. Ohio, the court unanimously ruled that the law did violate free speech rights under the First Amendment. The Ohio law made it illegal to teach and advocate for certain views, regardless of whether it would result in illegal acts. The court said that this kind of speech should be protected.

The court said: “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 and is likely to incite or produce such action.”

This established a new, more specific test for when controversial speech that could pose a danger loses First Amendment protection.

Sometimes called the Brandenburg test, after the name of the case, this new test says that speech can only be limited if it is “directed to inciting or producing imminent lawless action” and if it is “likely to incite or produce such action.”

Today, the “incitement to imminent lawless action” standard makes a clearer dividing line between protected and unprotected speech.

What are examples of how the incitement to imminent lawless action standard is different than the clear and present danger test? 

The Supreme Court had an opportunity to try out the new imminent lawless action standard in 1973. An Indiana court had ruled that a protestor’s statements that “We’ll take the (expletive) street later” showed a clear and present danger and could be punished. In Hess v. Indiana, the Supreme Court overruled that decision, saying that the statement was not incitement to imminent lawless action and should not be punished.

About 10 years later, the Supreme Court again applied the more specific imminent lawless action standard. It ruled that when people who were participating in a boycott organized by the NAACP threatened people who didn’t boycott certain businesses, they were engaged in protected speech. In NAACP v. Claiborne Hardware (1982), the court said, “When such appeals do not incite lawless action, they must be regarded as protected speech.”

In both these cases, the clear and present danger test might, depending on how it was applied, have suggested that the speech would not be protected by the First Amendment. But under the more specific imminent lawless action standard, it was clear that no violence or lawlessness was going to be an immediate, direct result of the speech — and that makes it protected free speech.

Karen Hansen is a content writer at Freedom Forum. She can be reached at [email protected].

This article is compiled based on previously published Freedom Forum content and with the input of Freedom Forum experts, including Senior Fellow Gene Policinski.