The “clear and present danger” test was used in US courts to determine if laws restricting speech were constitutional until 1969, when it was replaced by “imminent illegal action.” The government could limit speech that posed a risk to public safety or national security, but over time, the approach to speech has evolved to favor fewer restrictions. Brandenburg v. Ohio changed the concept to “imminent wrongful action,” where speech like distributing anti-war pamphlets would be protected, but inciting illegal activity that could occur before law enforcement agencies had a chance to respond would not be protected.
In US law, the phrase “clear and present danger” reflected a test that was used in courts to determine whether or not laws restricting speech were constitutional until 1969, when it was replaced by the concept of “imminent illegal action.” Simply put, it was determined that if speech created a clear and present danger to public safety, it would not be considered legally protected free speech. In such cases, the government would have the right to limit it.
This sentence comes from Schenck v. United States, 249 US 47 (1919), a case challenging restrictive “subversive activities” laws enacted in response to World War I. In this case, a man who distributed anti-war pamphlets to draft-age men claimed he had the right to do so because the pamphlets were protected by the free speech law. Writing for the Supreme Court, Justice Oliver Wendell Holmes, Jr. disagreed, saying that the government did in fact have the right to regulate speech that posed a clear and present danger to safety. The example he used was yelling “fire” in a crowded theater when there was no fire; he believed wartime restrictions on speech were reasonable since it was a matter of national security.
This concept was applied to a series of cases between 1919 and 1969 in which people ran afoul of laws aimed at limiting free speech in the interest of public safety. Doing things like inciting riots or lynchings and publishing the identities of secret agents was seen as a clear and present danger because it posed a risk to individuals and/or national security.
While the concept of clear and present danger has played an important role in American law, over time the government’s approach to speaking has begun to evolve. The Supreme Court and other lawyers have begun to argue more in favor of fewer restrictions on speech. They argued that the government could not suppress dissent, although it still had the right to restrict speech that could lead to immediate lawlessness or bodily harm.
With Brandenburg v. Ohio 395 US 444 (1969), the concept was changed to “imminent wrongful action.” In this case, speech such as distributing anti-war pamphlets would have been protected, but inciting illegal activity that could occur before law enforcement agencies had an opportunity to respond would not be protected. Therefore, situations such as lynching speeches may still be restricted by law.
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