• Last updated on November 11, 2022

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 ActEspionage Act of 1917 by discouraging enlistments in the armed forces, something that would not have resulted in a prosecution later. Because the key activity was the distribution of leaflets, Schenck protested that his conviction violated his freedom of expression rights under the First Amendment, and he attacked the constitutionality of the Espionage Act. The Supreme Court unanimously upheld his conviction. In the opinion for the Court, Justice Oliver Wendell HolmesHolmes, Oliver Wendell;Schenck v. United States[Schenck v. United States] said the leaflet posed a “clear and present danger” to the United States during wartime. It was the first use of this doctrine as grounds on which the government could restrain speech.Clear and present danger testSpeech, freedom of;Schenck v. United States[Schenck v. United States]Clear and present danger test

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[case]Abrams v. United States[Abrams v. United States] (1919) and dissent vigorously when others abused the test in later decisions.

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

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