1919 March 3

Supreme Court Creates “Clear and Present Danger” Test; Does Not Protect Dissent


The Supreme Court on this day upheld the conviction of Socialist anti-war activist Charles T. Schenck, and in the decision created the “clear and present danger” test for determining whether speech is protected by the First Amendment. In Schenck v. United States  the Court convicted Schenck of distributing leaflets opposing American participation in World War I. The Socialist Party had authorized Schenck to distribute leaflets opposing the war on August 13, 1917. The effect of the decision was to deny First Amendment protection for virtually any criticism of the government during war time.

In Abrams v. United States, decided on November 10, 1919, Justice Holmes changed his mind and, joined by Justice Louis Brandeis, dissented in an opinion that launched a reconsideration of the scope of the First Amendment that led to today’s modern constitutional law which is very protective of all forms of expression.

The Clear and Present Danger Test: “But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. . . 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. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

The Socialist Party Pamphlet (excerpts): “Assert your rights . . . [to oppose conscription into the army] . . . If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.”

Read about the history of freedom of speech in wartime: Geoffrey Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004)

Learn more; Socialist Party documents from 1917: http://www.marxists.org/history/usa/eam/spa/spadownloads-1917.html

Read the dramatic story of how Justice Holmes changed his mind: Thomas Healy, The Great Dissent:How Oliver Wendell Holmes Changed His Mind –and Changed the History of Free Speech in America (2013)


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