'This Wearisome Analysis'--The Clear and Present Danger Test from Schenck to Brandenburg

55 Pages Posted: 1 Apr 2020

See all articles by James M. McGoldrick

James M. McGoldrick

Pepperdine University - Rick J. Caruso School of Law

Date Written: March 26, 2020

Abstract

From its humble early beginnings in three 1919 cases, Schenck, Frohwerk, and Debs, the clear and present danger test provided little actual protection to the free speech of the defendants in those cases. But even in these three early cases, the suggestion that the First Amendment might provide any protection to speech other than preventing prior restraints was significant. The clear and present danger test gathered a little momentum in the 1919 dissenting opinions of Justices Holmes and Brandeis in Abrams. Most of that momentum was lost in 1925 in Gitlow v. New York, but regained two years later in the concurring opinion of Justice Brandeis in Whitney. Only in De Jonge v. Oregon and Herndon v. Lowry, eighteen years after Schenck, did the clear and present danger test even arguably appear to protect speech. Dennis savaged the test in 1951 before the test gradually began disappearing.

Then, remarkably, the test gained a new life in 1969 under the rubric of “incitement” in Brandenburg v. Ohio. Perhaps, the oddest part of the story of the clear and present danger test is how the threat of the test in Roth v. United States led to the development of the modern test for the protection of obscene speech. The test for a period of time was the all-purpose free speech test and even used in time, place, and manner cases and other cases far removed from actual incitement. In 1940, the Court in Thornhill v. Alabama applied it to a law regulating picketing, “But no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter.” The test in Bridges v. California was also important in limiting judicial power to punish dissenting voices, but Bridges and is progeny did not become the more powerful clear and present danger test that it had first seemed that it might be.

Dennis v. United States so weakened the proximity requirement of the clear and present danger test with regard to even the remotest threat to important interest, which in and of itself might have contributed to the demise of the test. Brandenburg v. Ohio in 1969 revised the test using many of the historically most protective elements of the test, which might have saved the test for another generation but for the fact that the test was soon far outstripped by the concurrently developing compelling state interest test. The clear and present danger test, to the degree that it still exists, is a shadow of itself, but its forerunner status in protecting speech against subsequent punishments may have contributed to the stellar protection that the compelling state interest now provides to the First Amendment.

Keywords: clear and present danger, first amendment, free speech

Suggested Citation

McGoldrick, James M., 'This Wearisome Analysis'--The Clear and Present Danger Test from Schenck to Brandenburg (March 26, 2020). South Dakota Law Review, Forthcoming, Pepperdine University Legal Studies Research Paper No. 2020/6, Available at SSRN: https://ssrn.com/abstract=3561968

James M. McGoldrick (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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