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 dangerClear and present danger test and its subsequent modifications. Developed by Justices Oliver Wendell Holmes and Louis D. Brandeis, this test weighs an individual’s First Amendment rights against the government’s right to protect itself and its citizens.

The clear and present danger test was set forth by Justice Holmes in Schenck v. United States[case]Schenck v. United States[Schenck v. United States] (1919). Charles Schenck and his codefendants were convicted under the 1917 Espionage Act for disrupting military recruiting by distributing antiwar leaflets. Schenck appealed, citing First Amendment protection, but the Court unanimously upheld the conviction. In the opinion for the Court, Holmes wrote, “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 Congress has a right to prevent. It is a question of proximity and degree.” The clear and present danger at the time was World War I, and the substantive evil was the hindering of national defense.

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[case]Dennis v. United States[Dennis v. United States] (1951), wrote, “Neither Justice Holmes nor Justice Brandeis ever envisioned that a shorthand phrase should be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case.…Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature.” Therefore, the Court continuously modified and reinterpreted the clear and present danger test.

For example, in Gitlow v. New York[case]Gitlow v. New York[Gitlow v. New York] (1925), the test was further qualified. Despite a lack of clear and present danger, the Court upheld Benjamin Gitlow’s conviction for publishing the Left-wing Manifesto, which urged a violent government overthrow. The majority opinion of Justice Edward T. Sanford put forth that speech is not protected “if its natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent.” The Court applied this new bad tendencyBad tendency test test again in Whitney v. California[case]Whitney v. California[Whitney v. California] (1927) to uphold the conviction of Charlotte Anita Whitney, a communist. She was guilty under California’s criminal syndicalism law because the organization in which she participated promoted violent political action. In upholding the conviction, the Court cited a state’s right to protect itself from organizations advocating criminal acts.

In addition to changing the definitions for tests, the Court also inconsistently applied them. For example, in Terminiello v. Chicago[case]Terminiello v. Chicago[Terminiello v. Chicago] (1949), Father Arthur Terminiello’s conviction was narrowly overturned, despite a riot by protestors during his inflammatory speech. In writing the majority opinion, Justice William O. Douglas modified the clear and present danger test by adding that it must be “of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” This particular Court was of the opinion that speech is necessarily provocative and that the ensuing disturbance was mild enough to be quelled by police.

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[case]Brandenburg v. Ohio[Brandenburg v. Ohio] (1969), however, the Court redefined clear and present danger, and in so doing, began to favor civil liberties. Ku Klux Klan leader Clarence Brandenburg was convicted under Ohio’s criminal syndicalism law, which was modeled on the California statute under which Whitney was convicted decades earlier. The Court overturned the conviction and established the incitement test. In its unsigned majority opinion, the Court distinguished between speech and action. It stated that speech advocating force or lawlessness is protected; however, speech “directed to inciting or producing imminent lawless action” or “likely to incite or produce such action” is unprotected. The Court referred to this ruling in subsequent cases.

• 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

First Amendment absolutism

First Amendment balancing

Gitlow v. New York

Schenck v. United States

Terminiello v. Chicago

Whitney v. California