Clear and Present Danger

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CLEAR AND PRESENT DANGER

The clear and present danger rule, announced in schenck v. united states (1919), was the earliest freedom of speech doctrine of the Supreme Court. Affirming Schenck's conviction, Justice oliver wendell holmes concluded that a speaker might be punished only when "the words 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." Holmes was drawing on his own earlier Massachusetts Supreme Judicial Court opinion on the law of attempts. There he had insisted that the state might punish attempted arson only when the preparations had gone so far that no time was left for the prospective arsonist to change his mind, so that the crime would have been committed but for the intervention of the state. In the free speech context, Holmes and Justice louis d. brandeis assimilated this idea to the marketplace of ideas rationale, arguing that the best corrective of dangerous speech was more speech rather than criminal punishment; government should intervene only when the speech would do an immediate harm before there was time for other speech to come into play.

In the context of Schenck, the danger rule made particular sense; the federal statute under which the defendant was prosecuted made the act of espionage a crime, not the speech itself. The danger rule in effect required that before speech might be punished under a statute that forbade action, a close nexus between the speech and the action be shown. The concentration of the rule on the intent of the speaker and the circumstances surrounding the speech also seem most relevant in those contexts in which speech is being punished as if it constituted an attempt at a criminal act. Opponents of the danger rule have often insisted that Holmes initially intended it not as a general first amendment test but only for cases in which a statute proscribing action was applied to a speaker.

In Schenck, Holmes wrote for the Court. The most extended statement of the danger rule came some months later in abrams v. united states (1919), but by then it was to be found in a Holmes dissent, joined by Brandeis. In gitlow v. new york (1925) the Court used the bad tendency test which openly rejected the imminence or immediacy element of the danger rule—again over dissents by Holmes and Brandeis. Brandeis kept the danger rule alive in a concurrence in whitney v. california (1927) in which he added to the immediacy requirement that the threatened evil be serious. The danger of minor property damage, for example, would not justify suppression of speech.

In the 1930s and 1940s the Court was confronted with a series of cases involving parades and street corner speakers in which the justification offered for suppressing speech was not concern for the ultimate security of the state but the desire to maintain peaceful, quiet, and orderly streets and parks free of disturbance. Behind the proffered justifications usually lurked a desire to muzzle unpopular speakers while leaving other speakers free. In this context the clear and present danger rule was well designed to protect unpopular speakers from discrimination. It required the community to prove that the particular speaker whom it had punished or denied a license did in fact constitute an immediate threat to peace and good order. In such cases as herndon v. lowry (1937) (subversion), thornhill v. alabama (1941) (labor picketing), bridges v. california (1941) (contempt of court), west virginia board of education v. barnette (1943) (compulsory flag salute), and Taylor v. Mississippi (1943) (state sedition law), the clear and present danger rule became the majority constitutional test governing a wide range of circumstances, not only for statutes punishing conduct but also those regulating speech itself.

Even while enjoying majority status the rule came under attack from two directions. The "absolutists" led by alexander meiklejohn criticized the rule for allowing too broad an exception to First Amendment protections. The rule made the protection of speech dependent on judicial findings whether clear and present danger existed; judges had notoriously broad discretion in making findings of fact, as feiner v. new york (1951) and terminiello v. chicago (1949) illustrated. When applied to radical or subversive speech, the danger test seemed to say that ineffectual speech would be tolerated but that speech might be stifled just when it showed promise of persuading substantial numbers of listeners. On the other hand, those favoring judicial self-restraint, led by Justice felix frankfurter, argued that the rule was too rigid in its protection of speech and ought to be replaced by a balancing test that weighed the interests in speech against various state interests and did so without rendering the immediacy of the threat to state interests decisive.

Later commentators have also argued that the distinction between speech and conduct on which the danger rule ultimately rests is not viable, pointing to picketing and such symbolic speech as flag desecration which intermingle speech and action. The danger rule also engenders logically unresolvable hostile audience problems. If Holmes's formula had demanded a showing of the specific intent of the speaker to bring about violence or of specific incitement to crime in the content of the speech, it might have afforded greater protection to some speakers. The independent weight the danger formula gives to surrounding circumstances may permit the stifling of speakers because of the real or imagined act or threats of others. Yet focusing exclusively upon intent or upon the presence of the language of incitement may lead to the punishment of speakers whose fervently revolutionary utterances in reality have little or no chance of bringing about any violent action at all.

In dennis v. united states (1951) the clear and present danger test was converted overtly into a clear and probable danger test and covertly into a balancing test. As its origin in the law of attempts reminds us, the cutting edge of Holmes's test had been the imminence or immediacy requirement. Speech might be punished only if so closely brigaded in time and space with criminal action that no intervening factor might abort the substantive evil. The probable danger test held that if the anticipated evil were serious enough the imminence requirement might be greatly relaxed. In practice this evisceration of the danger test left the Court free to balance the interests to be protected against the degree of infringement on speech, as the proponents of judicial self-restraint argued the Court had always done anyway under the danger standard.

Since Dennis the Court has consistently avoided the precise language of the clear and present danger test and with few exceptions commentators announced its demise. In brandenburg v. ohio (1969), however, the Court announced that "constitutional guarantees of free speech … do not permit a State to forbid … advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The text and footnotes surrounding this pronouncement, its careful avoidance of the literal clear and present danger formula itself, plus the separate opinions of several of the Justices indicate that Brandenburg did not seek to revive Holmes's danger rule per se. Such earlier proponents of the rule as hugo l. black and william o. douglas, feeling that it had been too corrupted by its Dennis conversion to retain any power to protect speech, had moved to the position of Meiklejohnian absolutism and its rejection of the danger standard. On the other hand, those Justices wishing to preserve low levels of protection for subversive speech and the high levels of judicial self-restraint toward legislative efforts to curb such speech that had been established in Dennis and yates v. united states (1957), shied away from the danger test because they knew that, in its Holmesian formulation, it was antithetical to the results that had been achieved in those cases. Apparently, then, Holmes's formula was avoided in Brandenburg because some of the participants in the per curiam opinion thought the danger rule protected speech too little and others thought it protected speech too much.

Yet Brandenburg did revive the imminence requirement that was the cutting edge of the danger test, and it did so in the context of subversive speech and of over-rulingWhitney v. California, in which the Brandeis and Holmes clear and present danger "concurrence" was in reality a dissent. Even when the danger test was exiled by the Supreme Court it continued to appear in state and lower federal court decisions and in popular discourse. Although the distinction between speech and action—like all distinctions the law seeks to impose—is neither entirely logical nor entirely uncontradicted by real life experience, clear and present danger reasoning survives because most decision makers do believe that the core of the First Amendment is that people may be punished for what they do, not for what they say. Yet even from this basic rule that speech alone must not be punished, we are compelled to make an exception when speech becomes part of the criminal act itself or a direct incitement to the act. Even the most absolute defenders of free speech would not shy from punishing the speaker who shouts at a mob, "I've got the rope and the dynamite. Let's go down to the jail, blow open the cell and lynch the bastard." However imperfectly, the Holmesian formula captures this insight about where the general rule of free speech ends and the exception of punishment begins. It is for this reason that the danger rule keeps reappearing in one form or another even after its reported demise.

The danger rule is most comforting when the speech at issue is an open, particular attack by an individual on some small segment of government or society, such as a street corner speech denouncing the mayor or urging an end to abortion clinics. In such instances the general government and legal system clearly retain the strength to intervene successfully should the danger of a substantive evil actually become clear and present. The emasculation of the danger test came in quite a different context, that of covert speech by an organized group constituting a general attack on the political and legal system as a whole. Unlike the situation in particularized attacks, where the reservoir of systemic power to contain the anticipated danger remains intact, should subversive speech actually create a clear and present danger of revolution the system as a whole might not have the capacity to contain the danger. It is one thing to wait until the arsonist has struck the match and quite another to wait until the revolution is ready to attack the police stations. For this reason the Court in Dennis reverted to the Gitlow -style reasoning that the government need not wait until the revolutionaries had perfected their campaign of conversion, recruitment, and organization. Dennis and Yates carve out a Communist party exception to the immediacy requirement of the clear and present danger rule. They say that where the speech is that of a subversive organization, the government need not prove a present danger of revolution but only that the organization intends to bring about the revolution as speedily as circumstances permit. Thus the government is permitted to intervene early enough so that its own strength is still intact and that of the revolutionaries still small. When in defense of the danger rule Holmes argued that time had overthrown many fighting faiths, he did so with a supreme confidence that it was the American, democratic, fighting faith that time favored and that subversive movements would eventually peter out in America's liberal climate. It was a failure of that faith in the face of the communist menace that led to the emasculation of the danger rule during the Cold War of the 1950s. With hindsight we can see that Holmes's confidence remained justified, and that communist subversion could not have created even a probable, let alone a present danger. Nonetheless American self-confidence has eroded sufficiently that the Supreme Court remains careful not to reestablish the full force of the danger rule lest it handicap the political and legal system in dealing with those who organize to destroy it.

Martin Shapiro
(1986)