Rules set forth in several twentieth century Supreme Court decisions by which the Court judged later claims of protected speech.
Beginning in the early twentieth century, the Supreme Court adopted tests by which to decide claims of First Amendment protection. The first and most frequently applied test is that of clear and present danger
The clear and present danger test was set forth by Justice Holmes in Schenck v. United States
However, just as free speech is not absolute, according to the Court, speech tests also are not absolute. Chief Justice Fred M. Vinson, in the majority opinion in Dennis v. United States
For example, in Gitlow v. New York
In addition to changing the definitions for tests, the Court also inconsistently applied them. For example, in Terminiello v. Chicago
In Dennis, the Court again modified the definition of clear and present danger. In upholding the convictions of communists under the Smith Act (1940), Chief Justice Fred M. Vinson restated Chief Judge Learned Hand’s lower court ruling: “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.” The Court thus created the grave and probable danger test, which removed the burden of the state to prove the existence of an immediate danger to itself. Consequently, civil liberties were severely weakened.
First Amendment speech tests are not without criticism, as Justice Hugo L. Black’s dissenting opinion in Dennis illustrates: “I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress’ or our own notions of mere ’reasonableness.’ Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress.” Black’s dissent is important because the Court seemed to favor the side of government in the First Amendment cases brought to it.
By Brandenburg v. Ohio
Killian, Johnny H., ed. The Constitution of the United States of America: Analysis and Interpretation. Washington, D.C.: Government Printing Office, 1987. Rabban, David M. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997.
Brandenburg v. Ohio
Clear and present danger test
Dennis v. United States
First Amendment absolutism
First Amendment balancing
Gitlow v. New York
Schenck v. United States
Terminiello v. Chicago
Whitney v. California