Rethinking the Clear and Present Danger Test

Dow, David R.

doi:10.2139/ssrn.3577105

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Rethinking the Clear and Present Danger Test

Indiana Law Journal, Vol. 73, No. 1217, 1998

31 Pages Posted: 16 Jun 2020

See all articles by David R. Dow

David R. Dow

University of Houston Law Center

Date Written: 1998

Abstract

We argue in this Article that the Clear and Present Danger test ought to be abandoned and replaced with a nearly categorical prohibition on the abridgement of speech. The Free Speech Clause should protect all speech unless three conditions are satisfied: (1) the speaker's specific intent in uttering the speech is to cause an unlawful injury, (2) the injury in fact occurs as a proximate result of the speech, and (3) the speaker, through his or her speech, overwhelmed (i.e., controlled) the will of the listener. This test we propose would permit almost no speech whatsoever to be punished, and, for the reasons we elaborate on, it is superior to the CPD test.

Keywords: freedom of speech, First Amendment, Clear and Present Danger

Suggested Citation: Suggested Citation

Dow, David R., Rethinking the Clear and Present Danger Test (1998). Indiana Law Journal, Vol. 73, No. 1217, 1998, Available at SSRN: https://ssrn.com/abstract=3577105 or http://dx.doi.org/10.2139/ssrn.3577105