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The clear and present danger test features two independent conditions: first, the speech must impose a threat that a substantive evil might follow, and second, the threat is a real, imminent threat. The court had to identify and quantify both the nature of the threatened evil and the imminence of the perceived danger.
Aug 7, 2023 · In the 20th century, the Supreme Court established the clear and present danger test as the predominate standard for determining when speech is protected by the First Amendment.
Nov 2, 2015 · The “clear and present danger” standard encouraged the use of a balancing test to question the state’s limitations on free speech on a case-by-case basis. If the Court found that there was a “clear and present danger” that the speech would produce a harm that Congress had forbidden, then the state would be justified in limiting that ...
United States, 464 in which the defendants had been convicted of seeking to disrupt recruitment of military personnel by disseminating leaflets, Justice Holmes formulated the “clear and present danger” test that has ever since been the starting point of argument.
Early in the 20th century, the Supreme Court established the clear and present danger test as the predominant standard for determining when speech is protected by the First Amendment.
Articulating the clear and present danger test, Holmes voiced the opinion of a unanimous Court in sustaining the convictions. Holmes felt that courts owed greater deference to the government during wartime, even when constitutional rights were at stake.
The clear and present danger test used in this early First Amendment decision no longer holds significant value and is largely useful from a historical perspective, showing how the doctrine in this area has evolved.
Schenck v. United States, legal case in which the U.S. Supreme Court ruled on March 3, 1919, that the freedom of speech protection afforded in the U.S. Constitution’s First Amendment could be restricted if the words spoken or printed represented to society a “ clear and present danger.”
The majority simply referred to Schenck and Frohwerk to rebut the First Amendment argument, but the dissenters urged that the government had made no showing of a clear and present danger.
The Court adopted a flexible version of the clear and present danger test: In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. 14 Footnote 341 U.S. at 510 (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir ...
