BRANDENBURG v. OHIO 395 U.S. 444 (1969)

Libertarian critics of the clear and present danger test had always contended that it provided insufficient protection for speech because it depended ultimately on judicial guesses about the consequences of speech. Judges inimical to the content of a particular speech could always foresee the worst. Thus, to the extent that the test did protect speech, its crucial element was the imminence requirement, that speech was punishable only when it was so closely brigaded in time with unlawful action as to constitute an attempt to commit, or incitement of, unlawful action. When the Supreme Court converted clear and present danger to clear and probable danger in dennis v. united states (1951) it actually converted the clear and present danger test into a balancing test that allowed judges who believed in judicial self-restraint to avoid enforcing the first amendment by striking every balance in favor of the nonspeech interest that the government sought to protect by suppressing speech. The Dennis conversion, however, was even more damaging to the clear and present danger rule than a flat rejection and open replacement by the balancing standard would have been. A flat rejection would have left clear and present danger as a temporarily defeated libertarian rival to a temporarily triumphant antilibertarian balancing standard. The conversion to probable danger not only defeated the danger test but also discredited it among libertarians by removing the imminence requirement that had been its strongest protection for dissident speakers. Accordingly commentators, both libertarian and advocates of judicial self-restraint, were pleased to announce that Dennis had buried the clear and present danger test.

Some critics of the danger test had supported learned hand's approach in masses publishing co. v. patten (1917), which had focused on the advocacy content of the speech itself, thus avoiding judicial predictions about what the speech plus the surrounding circumstances would bring. Masses left two problems, however: the "Marc Antony" speech which on the surface seems innocuous but in the circumstances really is an incitement, and the speech preaching violence in circumstances in which it is harmless. oliver wendell holmes himself had injected a specific intent standard alongside the danger rule, arguing that government might punish a speaker only if it could prove his specific intent to bring about an unlawful act.

Eighteen years after Dennis, carefully avoiding the words of the clear and present danger test itself, the Supreme Court brought together these various strands of thought in Brandenburg v. Ohio, a per curiam holding that "the constitutional guarantees of free speech … do not permit a state to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." In a footnote the Court interpreted Dennis and yates v. united states (1957) as upholding this standard. The decision itself struck down the Ohio Criminal Syndicalism Act which proscribed advocacy of violence as a means of accomplishing social reform. The Court overruled whitney v. california (1927).

Martin Shapiro
(1986)