Editing Clear and present danger (section)

==History==
{{See also|First Amendment to the United States Constitution#Speech critical of the government|label 1=First Amendment issues related to speech critical of government}}
Before the 20th century, most restrictions on free speech issues in the United States were imposed to [[prior restraint|prevent certain types of speech]]. Although certain kinds of speech continue to be prohibited in advance,<ref>{{Cite web |title=Prior Restraint |url=https://www.law.cornell.edu/wex/prior_restraint |access-date=2022-06-18 |website=LII / Legal Information Institute |language=en}}</ref> dangerous speech started to be punished after the fact in the early 1900s, at a time  when US courts primarily relied on a doctrine known as the ''[[bad tendency|bad tendency test]]''.<ref name=RCL>Rabban, pp 132&ndash;134, 190&ndash;199.</ref> Rooted in English [[common law]], the test permitted speech to be outlawed if it had a tendency to harm public welfare.<ref name=RCL/>

Antiwar protests during World War I gave rise to several important free speech cases related to sedition and inciting violence.  In the 1919 case ''[[Schenck v. United States]]'', the Supreme Court held that an antiwar activist did not have a First Amendment right to advocate [[draft resistance]].<ref name="Killian, p 1093">Killian, p 1093.</ref><ref>''Schenck v. United States'', 249 U.S. 47 (1919).</ref>  In his majority opinion, Justice [[Oliver Wendell Holmes Jr.]] introduced the ''clear and present danger test'', which would become an important concept in First Amendment law
{{blockquote|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 the [[United States 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.}}

In ''[[Frohwerk v. United States]]'' (1919) Justice Holmes summarized comments critical of U.S. wartime policies written by a [[journalist|newspaperman]] and stated about these comments the following: "It may be that all this might be said or written even in time of war in circumstances that would not make it a crime. We do not lose our right to condemn either measures or men because the country is at war."<ref name="20231215FSCMTSU">{{cite web |last1=Parker|first1=Richard |title=Frohwerk v. United States(1919) |url=https://firstamendment.mtsu.edu/article/frohwerk-v-united-states/ |publisher=Free Speech Center at Middle Tennessee State University |date=December 15, 2023|access-date=February 2, 2024 |archive-url=https://web.archive.org/web/20240202095835/https://firstamendment.mtsu.edu/article/frohwerk-v-united-states/ |archive-date=February 2, 2024}}</ref> This statement "represents an important addendum to the original explication of the clear and present danger test in that it specifies that even during war, courts should regard criticism of government policies and officials as protected speech."<ref name="20231215FSCMTSU" />

The ''Schenck'' decision did not formally adopt the clear and present danger test.<ref name="Killian, p 1093"/> Holmes later wrote that he intended the clear and present danger test to refine, not replace, the bad tendency test.<ref name=Dunlap/><ref>Rabban, pp 285&ndash;286.</ref> Although sometimes mentioned in subsequent rulings, the ''clear and present danger test'' was never endorsed by the Supreme Court as a test to be used by lower courts when evaluating the constitutionality of legislation that regulated speech.<ref name=K60>Killian, pp 1096, 1100.<br>Currie, David P., ''The Constitution in the Supreme Court: The Second Century, 1888–1986'', University of Chicago Press, 1994, p 269, {{ISBN|9780226131122}}.<br>Konvitz, Milton Ridvad, ''Fundamental Liberties of a Free People: Religion, Speech, Press, Assembly'', 	Transaction Publishers, 2003, p 304,  {{ISBN|9780765809544}}.<br/>Eastland,  p 47.</ref><ref>The Court adopted the [[imminent lawless action]] test in ''[[Brandenburg v. Ohio]]'', 395 U.S. 444 (1969), which some commentators view as a modified version of the clear and present danger test.</ref>

The Court continued to use the bad tendency test during the early 20th century in cases such as 1919's ''[[Abrams v. United States]]'', which upheld the conviction of antiwar activists who passed out leaflets encouraging workers to impede the war effort.<ref>''Abrams v. United States'', 250 U.S. 616 (1919).<br/>The bad tendency test was also used in ''Frohwerk v. United States'', 249 U.S. 204 (1919); ''Debs v. United States'', 249 U.S. 211 (1919); and  ''Schaefer v. United States'', 251 U.S. 466 (1920).<br/>See Rabban, David, "Clear and Present Danger Test", in ''The Oxford Companion to the Supreme Court of the United States'', p 183, 2005, {{ISBN|9780195176612}} .</ref>  In ''Abrams'', Holmes and [[Louis Brandeis|Justice Brandeis]] dissented and encouraged the use of the clear and present test, which provided more protection for speech.<ref>Killian, p. 1094.<br/>Rabban, p 346.<br>Redish, p 102.</ref>  In 1925's ''[[Gitlow v. New York]]'',  the Court made the First Amendment applicable against the states and upheld the conviction of Gitlow for publishing the "[[Left Wing Manifesto#"Left Wing Manifesto" issued by the Left Wing National Council|Left wing manifesto]]".<ref>''Gitlow v. New York'', 268 U.S. 652 (1925).</ref> ''Gitlow'' was decided based on the bad tendency test, but the majority decision acknowledged the validity of the clear and present danger test, yet concluded that its use was limited to ''Schenck''-like situations where the speech was not specifically outlawed by the legislature.<ref name=Dunlap/><ref>Redish, p 102.<br/>Kemper, p 653.</ref>

Brandeis and Holmes again promoted the clear and present danger test, this time in a concurring opinion in 1927's ''[[Whitney v. California]]'' decision.<ref name=Dunlap>Dunlap, William V., "National Security and Freedom of Speech", in Finkelman (vol 1), pp 1072–1074.</ref><ref>''Whitney v. California'' 274 U.S. 357 (1927).</ref>  The majority did not adopt or use the clear and present danger test, but the concurring opinion encouraged the Court to support greater protections for speech, and it  suggested that  "imminent danger"{{spaced ndash}}a more restrictive wording than "present danger"{{spaced ndash}}should be required before speech can be outlawed.<ref>Redish pp 102&ndash;104.<br/>Killian, p 1095.</ref> After ''Whitney'', the bad tendency test continued to be used by the Court in cases such as ''[[Stromberg v. California]]'', which held that a 1919 California statute banning red flags was unconstitutional.<ref>''Stromberg v. California'', 283 U.S. 359 (1931).<br/>Killian, p 1096.<br/>Another case from that era that used the bad tendency test was ''[[Fiske v. Kansas]]'', 274 U.S. 380 (1927).</ref>

The clear and present danger test was invoked by the majority in the 1940 ''[[Thornhill v. Alabama]]'' decision in which a state anti-picketing law was invalidated.<ref name=K60/><ref>''Thornhill v. Alabama'', 310 U.S. 88  (1940).</ref> Although the Court referred to the clear and present danger test in a few decisions following ''Thornhill'',<ref>Including ''[[Cantwell v. Connecticut]]'', 310 U.S. 296 (1940): "When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious.... [W]e think that, in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner's communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question."</ref><ref>And ''Bridges v. California'', 314 U.S. 252 (1941): "And, very recently [in ''Thornhill''] we have also suggested that 'clear and present danger' is an appropriate guide in determining the constitutionality of restrictions upon expression....  What finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious, and the degree of imminence extremely high, before utterances can be punished."</ref>  the bad tendency test was not explicitly overruled,<ref name=K60/>  and the clear and present danger test  was not applied in several subsequent free speech cases involving incitement to violence.<ref>Antieu, Chester James, ''Commentaries on the Constitution of the United States'', Wm. S. Hein Publishing, 1998, p 219, {{ISBN|9781575884431}}. Antieu names ''[[Feiner v. New York]]'', 340 U.S. 315 (1951); ''[[Chaplinsky v. New Hampshire]]'' 315 U.S. 568 (1942); and ''Kovacs v. Cooper'', 335 U.S. 77 (1949).</ref> The importance of freedom of speech in the context of "clear and present danger" was emphasized in ''[[Terminiello v. City of Chicago]]'' (1949),<ref>''[[Terminiello v. City of Chicago]]'', {{ussc|337|1|1949}}</ref> in which the Supreme Court noted that the vitality of civil and political institutions in society depends on free discussion.<ref name="Terminiello, at 4">''Terminiello'', at 4</ref> Democracy requires free speech because it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected.<ref name="Terminiello, at 4"/> Restrictions on free speech are permissible only when the speech at issue is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.<ref name="Terminiello, at 4"/> Justice [[William O. Douglas]] wrote for the Court that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."<ref name="Terminiello, at 4"/>

===''Dennis v. United States''===
[[File:Fred m vinson.jpg|thumb|right|180px|Chief Justice Fred M. Vinson reaffirmed the applicability of the doctrine of "clear and present danger" in upholding the 1950 conviction of Communist Party USA leader Eugene Dennis.]]

In May 1950, one month before the appeals court heard [[Oral argument in the United States|oral arguments]] in the ''[[Dennis v. United States]]''  case, the Supreme Court ruled on free speech issues in  ''[[American Communications Association v. Douds]]''. In that case, the Court considered the clear and present danger test, but rejected it as too mechanical and instead introduced a [[balancing test]].<ref>Eastland,  p 47.<br/>Killian, p 1101.<br />''American Communications Association v. Douds'' 339 U.S. 382 (1950).</ref> The federal appeals court heard oral arguments in the CPUSA case on June&nbsp;21–23, 1950. Judge [[Learned Hand]] considered the clear and present danger test, but his opinion adopted a balancing approach similar to that suggested in ''American Communications Association v. Douds''.<ref name=Dunlap/><ref>Eastland, pp 96, 112&ndash;113.<br/>Sabin, p 79.<br/>O'Brien, pp 7–8.<br/>Belknap (1994), p 222.<br/>Walker, p 187.<br/>Belknap, Michal, ''The Vinson Court: Justices, Rulings, and Legacy'', ABC-CLIO, 2004, p 109, {{ISBN|9781576072011}}.<br/>Kemper, p 655.</ref>

The defendants appealed the Second Circuit's decision to the Supreme Court in ''[[Dennis v. United States]]''.  The 6–2 decision was issued on June 4, 1951, and upheld Hand's decision.  Chief Justice [[Fred M. Vinson|Fred Vinson's]] opinion stated that the [[First Amendment to the United States Constitution|First Amendment]] does not require that the government must wait "until the putsch is about to be executed, the plans have been laid and the signal is awaited" before it interrupts seditious plots.<ref>Belknap (1994), p 223. Vinson quoted by Belknap.</ref> In his opinion, Vinson endorsed the balancing approach used by Judge Hand:<ref name=Dennis>[http://supreme.justia.com/cases/federal/us/341/494/case.html ''Dennis v. United States'' - 341 U.S. 494 (1951)]  Justia. Retrieved March 20, 2012.</ref><ref>Killian, p 1100.<br/>Kemper, pp 654&ndash;655.</ref><ref>{{cite web |last1=Steiner|first1=Ronald  |title=Gravity of the Evil Test |url=https://firstamendment.mtsu.edu/article/gravity-of-the-evil-test/ |publisher=Free Speech Center at Middle Tennessee State University |date=September 19, 2023|access-date=February 2, 2024 |archive-url=https://web.archive.org/web/20240202103151/https://firstamendment.mtsu.edu/article/gravity-of-the-evil-test/ |archive-date=February 2, 2024}}</ref>

{{blockquote|Chief Judge Learned Hand ... interpreted the [clear and present danger] phrase as follows: '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.' We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.}}