In upholding the conviction of a man for discouraging people from enlisting in the service, the Supreme Court first used the clear and present danger test to determine whether speech could be restricted.
Charles T. Schenck was convicted of violating the 1917 Espionage Act
Many scholars find it difficult to see how the Schenck leaflet constituted a clear and present danger to anyone. Nonetheless, the clear and present danger test was widely accepted. The test was sometimes abused by justices who said they were following the clear and present danger test when they were really departing from it, using a looser, much more restrictive bad tendency test against speech. The phrase’s key limitation is its vagueness, which can be interpreted to be quite intrusive on the free exercise of speech. What is clear to one person may be unclear to another, and what can be a present danger to one can seem quite remote to another. In his opinion, Holmes did state that Schenck’s activities in other times and places would have been protected and did clarify the meaning of his test in Abrams v. United States
Abrams v. United States
Bad tendency test
Brandenburg v. Ohio
Clear and present danger test
Gitlow v. New York
Holmes, Oliver Wendell
Stromberg v. California
War and civil liberties
Whitney v. California