First legal standard established by the Supreme Court in 1919 to determine whether speech posed such a direct and imminent threat to society that it could be punished without violating the free speech guarantees of the First Amendment to the U.S. Constitution.
Although the First Amendment was ratified in 1791, thereby guaranteeing that Congress could make no law abridging freedom of speech, freedom of the press, or other personal rights, it was not until 1919 that the Supreme Court squarely addressed the limits of free speech.
In his opinion on Abrams v. United States, Justice John H. Clarke drew on Oliver Wendell Holmes's definition of "clear and present danger."
Fearing the impact of disloyal speeches, leaflets, and newspaper articles during World War I, Congress passed the Espionage Act
The task fell to Justice Oliver Wendell Holmes
In the coming months, however, Holmes and his friend and colleague, Justice Louis D. Brandeis, seriously reconsidered the importance of free speech in a democratic society, even in times of war. In Abrams v. United States
Speaking for the Court, Justice John H. Clarke relied on Holmes’s own clear and present danger test. The leaflets violated the law because they had been distributed “at the supreme crisis of the war” and amounted to “an attempt to defeat the war plans of the Government.” Moreover, the general strike advocated by the Abrams defendants would have necessarily hampered prosecution of the war with Germany.
In dissent, Holmes did not repudiate his earlier opinions. Instead, he denied that “the surreptitious publishing of a silly leaflet by an unknown man” created “a clear and imminent danger that will bring about forthwith certain substantial evils that the United States constitutionally may seek to prevent.” Tilting the clear and present danger test away from an instrument in service of restricting speech and toward a shield protecting speech, Holmes argued that the First Amendment protected the expression of all opinions “unless they so imminently threatened immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
The clear and present danger test fell out of favor until the late 1930’s when for more than a decade the Court used it to protect speech in a wide array of situations. However, in the midst of the Cold War and the mounting fear of communism
In 1969 the Supreme Court adopted the Holmes-Brandeis dissent in Abrams. In Brandenburg v. Ohio
Abrams v. United States
Bad tendency test
Brandeis, Louis D.
Brandenburg v. Ohio
Holmes, Oliver Wendell
Schenck v. United States
Tennessee v. Garner