Summary of lecture notes (lyles, PP slides)
- [1] “clear and present danger” test
- [2] “Legislative reasonableness” and/or “bad tendency” test
- [3] “preferred-position” test
- [4] “void-for-vagueness” test
- [5]“fighting words” test
- [6]“gravity of evil” test
- [7]”overbreadth” and [8]”least means“ tests
- [9] the “incitement to imminent lawless action” test
- [10+] “obscenity” has several tests
Excerpt from Lyles, et. al., Civil Liberties and the Constitution: Cases and Commentaries, 9th edition, 2011, pp. 35-37
Core principles, Subversive Advocacy, and Clear and Present Danger
Featured Cases
Schenck v. United States; Abrams v. United States; Gitlow v. New York; Whitney v. California; Dennis v. United States; Brandenburg v. Ohio
“The question in every case,” said Justice Holmes for a unanimous Court in Schenck v. United States (249 U.S. 47, 1919), “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.” In the attempt to decide what constitutes such danger, the Court began to wrestle with speech at its core—speech against the government. Democratic governments clearly have the responsibility of self-preservation. Revolutions ultimately may be desirable, but revolutions by their very nature are not governed by constitutional processes. The early subversive advocacy cases have become the classic free-speech cases. They began in World War I and continued in the years immediately following World War II, when relations between the United States and the Soviet Union deteriorated to the point of a cold war impasse. The question in these cases was not whether subversive actions can be prevented. Rather, it was whether speech advocating unlawful actions can be punished.
Holmes formulated the clear-and-present-danger test. Soon, however, he came to disagree with the way that his own test was being applied to specific cases. As the subversive advocacy cases progressed, he and Louis Brandeis wrote their famous dissents. They thought that the Court found danger too easily when serious threats were not really present. Nevertheless, fear in society grew, and the government responded by punishing speech. People were found guilty of subversive advocacy and imprisoned for acts ranging from passing out antiwar leaflets to attending certain meetings. Even a Presidential candidate was imprisoned for a speech that he gave. After World War II, suspicion mounted that an international Communist conspiracy seeking world domination was being actively supported by Communists living within the United States. These suspicions were stirred into a kind of widespread public hysteria as some politicians, most notably Senator Joe McCarthy (R-WI), charged that Communists were occupying positions in government and had infiltrated the military–industrial complex. Stung by Republican charges of official lack of attention to and toleration of Communists in such vital places, the Democratic Party realized that being tagged with a “soft on Communism” label could be very damaging in the forthcoming general elections. Hence, in 1948 the Justice Department moved to enforce the Smith Act against the American Communist Party, in which eleven of the group’s leaders were indicted on charges of willfully and knowingly (1) conspiring to organize the Communist Party, a group of persons who teach and advocate the overthrow of the government by force and violence; and (2) advocating and teaching the duty and necessity of overthrowing the government by force and violence.
After a marathon trial lasting nine months, the Communist leaders were found guilty as charged. Subsequently, their convictions were affirmed by both the Court of Appeals for the Second Circuit and the Supreme Court in Dennis v. United States (infra). Both courts found that the act, on its face and as applied, did not cut too deeply into constitutional guarantees. Chief Justice Fred Vinson, writing the leading opinion for the Supreme Court, purported to use the clear-and-present-danger test, but in order to determine clear and present danger he adopted reasoning that was applied in the Court of Appeals by Judge Learned Hand. To Judge Hand, the crucial question was “whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” The Chief Justice reasoned that since the government’s very existence was at stake, the clear-and-present-danger test did not mean that the government could not act until the “putsch was about to be executed.” Knowledge of the existence of a group aiming to overthrow the government “as speedily as circumstances would permit” was deemed sufficient to justify restrictive governmental action.
The dissenters sharply disagreed with Chief Justice Vinson and criticized, among other things, what they considered his tortured construction of the clear-and-present-danger test. Even those who concurred with the Court’s decision questioned the wisdom of using “clear and present danger” in a case like Dennis and suggested what they considered to be more appropriate standards by which to uphold the conviction of the Communist leaders.
Smith Act prosecutions eventually came to a close. The chief protagonists, such as Joe McCarthy, had died, and the Court began to make it much harder to convict. In Yates v. United States (354 U.S. 298, 1957) the Court effectively put an end to conviction for advocacy under the Smith Act. The opinion was based on statutory interpretation, but it was written in a way that warned of Constitutional difficulties. Writing for the Court, Justice Harlan said
[We reject the proposition that] mere doctrinal justification of forcible overthrow, if engaged in with the intent to accomplish overthrow is punishable [under] the Smith Act. [In trying to distinguish Yates from Dennis] [The] essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.
Many urged abandoning clear and present danger as a test. Justices Douglas, Black, and others argued that it had so often been interpreted to restrict speech improperly that it should be buried. The modern test governing advocacy comes from a case involving the Ku Klux Klan. In Brandenburg v. Ohio, the Court asserted there must be “incitement to imminent lawless action.” The Court did not mention the clear-and-present-danger test. Neither did itdisavow it, and conceivably the new standard is seen simply as the way to assess clear and present danger. On the other hand, to have ignored the words “clear and present danger” in Brandenburg surely was not simply an oversight, so many people believe that it has been replaced by “incitement to imminent lawless action.” Like all tests, this one has its problems. What constitutes incitement? Recall the funeral oration of Caesar. “Friends, Romans, countrymen, lend me your ears; I come to bury Caesar, not to praise him.” Mark Antony’s speech serves as a classic literary example of incitement, even while it claims to do otherwise. Or, assume that a boring speaker and an electrifying speaker use the exact same words. Should the protection of speech turn on the eloquence of the speaker? The intent of the speaker? The reaction of the crowd? The new test solves some problems, but it raises others.
The rocky road traveled by the clear and present danger test (Cf. Landmark Communication, Inc. v. Virginia, 435 U.S. 829, 1978) illustrates the fact that judges rather than tests or doctrines decide cases. It becomes quite clear that no matter what test or doctrine is used, or even whether one is used at all, individual judges invariably weigh or balance a number of factors and interests in reaching their decisions. It may well be that social circumstances and prevailing political forces set the terms of First Amendment jurisprudence. Worldwide communism is no longer seen as a threat, but it takes little imagination to see that fear of terrorism could become its modern counterpart. The threats may be essentially the same or they may be fundamentally different, but there is little doubt that many of the debates thought to have been resolved in an earlier era will resurface.
The clear and present danger test and its evolution show how tricky it is to balance free speech and government interests. While the original idea in Schenck v. United States aimed to limit harmful or subversive speech, it was too broad and often led to punishing people for merely expressing unpopular views. Over time, the Brandenburg v. Ohio standard of “incitement to imminent lawless action” offered a better balance by focusing on clear and immediate threats rather than broad, abstract fears. However, even this has its challenges, like defining what constitutes “imminent” action or distinguishing intent from actual harm.
Legal tests are not static and must be reinterpreted in light of evolving societal conditions.
REMINDER TO MYSELF TO STUDY THIS PAGE**
Clear and Present Danger Test presented “whether the words used are used in such circumstances and are of such nature as to create a clear and present danger”. But as the text suggests the deciders of such tests and doctrines were the judges themselves. In Schenck v. U.S., this test was applied but the country was not at war and the socialists were just expressing their beliefs which the court banned using this test. So there is no context or situation that the Court allows the preservation if it goes against the opinion of the majority.
Best to reference this page for the final.
This post provides a thorough examination of the First Amendment’s evolving interpretations, focusing on the clear-and-present-danger test and its role in balancing free speech with national security. Schenck v. United States established a significant precedent through Holmes’s test, though cases like Dennis and Yates show how its application has varied with shifting societal and political concerns. The Court’s transition from the clear-and-present-danger test to the “incitement to imminent lawless action” standard in Brandenburg reflects an attempt to limit speech restrictions to only the most direct and immediate threats. The complexities of this new standard—such as the intent of the speaker and audience reactions—highlight ongoing challenges in free speech jurisprudence. This legacy underscores that free speech doctrines continue to be influenced by societal anxieties, suggesting that emerging issues may prompt further legal reinterpretation.
It’s striking how “clear and present danger” started as a simple test for limiting speech yet kept shifting as fears changed—from Communism to terrorism, basically anything they feel is a present threat at any given time. People who created it then questioned its use. I don’t think it’ll ever stop evolving.
And just as I was treating the test as an introduction- just as with the Lemon Test, there were problems with Clear and Present Danger. Namely- what wasn’t a clear and present danger? The test can be applied shockingly easily- and while yes it could have been used against Trump and other insurrectionists- this opening of pandora’s box feels contrary to Free Speech as it did inhibit speech if a given speech is declared as a danger.
Although Trump v. United States (2024) discussed the nature of presidential powers and whether or not a former president is immune from criminal prosecutions, I think his actions after the 2024 loss would not pass the Brandenburg test and would constitute an “incitement to imminent lawless action.” It’s interesting to see how these tests will develop and how even Justices who created the tests’ may disagree with its application in future cases. It raises the question of whether tests are even practical to create in decisions if they will inevitably change/be overturned/expanded depending on who sits on the bench.
Tests making it simple for the Court to decide the limits on protected speech are never all-encompassing. They can come up with as many ‘tests’ as they’d like, and they have, but none will ever fit fully the broad spectrum of human speech. Ultimately, just as we saw in the case of Establishment, decisions come down to something as simple as “whatever the Court feels like that day”. The Supreme Court, by nature, will very likely continue its established practice of consistent inconsistency here.
I think the clear and present danger test is an interesting topic on determining what is considered dangerous. Specifically how society can allow for the direction of defining danger.For example the red scare and its opposition to communism initiated a political belief to be extremely dangerous.
It was very interesting to see and understand which things were influencing Court to establish new tests. Influenced by current events, test were developed and used in future cases, which might not always were good to apply, so new test were established. It would be interesting if there would be only one universal test for speech
The creation of certain tests are absolutely helpful to determining what speech should and should not be protected but, at the same time, I don’t think any of the tests we’ve learned about fit every case.
Even if the “imminent clear and present danger” test constructed by Justices Holmes and Brandeis is no more seen as binding jurisprudence and has been surpassed by another neo-quasi label. It is embedded into the histories and tradition in which many cases are and will be decided upon. Be it the original iteration or the third, the blind justice axioms are weighted by the evolution of the Holmes and Brandies test ultimately. As the modern problems with free speech arise, the Court has time after time decided to protect the vast majority of speech and has set a high standard in favor of any accused individual or entity. Behaviorally, The Supreme Court can be moved to a more restrictive stance, but after many wars and a history and tradition of upholding the first amendment, I see the court not limiting speech unless there is total war.
It is interesting to see which test the court applies in certain cases. I think its personally dependent on the current events in the world and morality, as it can change. Slavery was once moral; now it is not.
Tests being used in the judicial system don’t hold as high of importance as I once thought. Many tests are used for their guiding principles, but in the end, it is up to the judges to make a decision. We saw that tests can even be thrown out the window, such as when the Lemon test was disregarded in Marsh v Chambers. So ultimately, tests aren’t really the main priority when deciding cases.
Tests are repeatedly seen as more of a guide rather then something to follow. You can’t find a fail proof test to make something so defined when it comes to law because society, justices, and the court always is changing and seeing things differently based on cases rather than tests.
The tests alone wont cut it when it comes to deciding freedom of speech. Tests will always leave room for interpretation. Ultimately, behavioral jurisprudence alongside the current political arena will decide how the court will behave during a certain case involving free speech.
While tests provide useful guidelines for decision-making, this chapter highlights what is surely a tough pill to swallow: In the end, justices decide cases, not tests. While judicial precedence is customarily followed (with some exceptions), it is by no means binding. With that being said, tests nonetheless give us valuable insight into the thought process involved in judicial decisions. In an area as contentious and complex as speech, such insight (however tenuous its adherence may be in practice), is certainly welcome.
Tests can be a nice guide, but they shouldn’t be relied on so heavily.
I believe that Justice Holmes made an astute observation when addressing the objective of the danger test towards the limitations of free speech. I do believe that not all speech should be allowed if it presents a certain danger to a person and threatens harm onto individuals but I also am a strong believer in allowing speech to be said without limitation as these harms that people see in free speech are influenced differently by officials since people all have different values. Therefore what constitutes a danger to an individual? What does danger or harm mean?
I’m glad the Smith act was neutered. I support the right of people to say they want to overthrow the government. I don’t support their right to actually overthrow the government though because violence is very bad! If moves were made to peacefully overthrow the government, the government would be very bad because they’d use violence and against peaceful people. Funny how these things work.
slide about the clear and present danger test
“Clear and Present Danger” test – developed in Schenck
Prongs:
1) The danger must be clear and immediate
2) The speaker must have specific intent, that is, the intent to achieve certain criminal effects.
3) The gravity of evil must be such that there is a probability of serious injury to the state.
It will be interesting to see how the Schenck case has been applied to expression cases in the US and how the court interprets the different meanings of the doctrine as a whole.
A few of the tests listed above are subjective to the judges perspectives at the time. I feel as though free speech really depends on the current events happening within society at the moment. Morality can change during certain times and that can affect the way people see and feel about speech. Language varies and I think in the future, these tests would have to reflect that.
I think that the tests like the Constitution itself is written in a way so that the decision must be made by a judge because of how vague the terminology is, which I think is useful for applying tests in current time and hopefully making this adaptable for the future
I found an interesting article that analyzes the moral failure of the Clear and Present Danger Test: https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1437&context=wmborj
In the article David R. Dow suggests that the clear and present danger test protects too little speech. He posits that speech should be protected unless three conditions are met: (1) the speaker’s specific intent in uttering the words was to cause an unlawful injury, (2) the injury in fact occurred as a proximate result of the speech, and (3) the speaker, through his or her speech, overwhelmed the will of the listener.
I think that a good point is made at the end that judges are going to decide the case no matter what test is applied. I think that most of the tests are written so ambiguously that they are able to interpret the case how they would like. However, if you take away the ambiguity from the test they may become too narrow that they might not apply to all cases. They also may become too restrictive. We saw this when we did the exercise of writing our own Lemon test.
Clear and present danger is such a subjective topic. What is clearly dangerous to me may seem like absolutely nothing to another person. How can the court then interpret my version of clear and present danger?
although there are so many tests that can be applied to speech cases, there is no clear-cut ways to determine if something is constitutional or not. There is always a need for personally opinion from the judges.
It is honestly troubling to understand this reality, where regardless of the numerous tests created, there will always be room for subjectivity. Similar to the new decision behind Roe v. Wade and this conversation of subjectivity. I highly doubt there will ever be a test developed that will delete this room for conversation, but we still have a lot to improve in general as a country.
Every conflict always is started by harmful words or propaganda against one party or a group of people. We have many wars which sre going on in the world because propaganda of some extremists, terrorism is among the major problems the world is facing now and if you see the roots of all these wars, you’ll find a big role of expressions. That’s why regulations on the freedom of speech should be put on the test.
It’s very apparent that free speech cases are dependent on the context of what is currently occurring in the world. Wars obviously have a tendency to increase the concern against “freedom of speech” and possible violations. Words are power, they can create emotions, spread ideologies, and encourage others to do certain things. In a time of war, it makes sense for the government to want to limit this. I dont know if i would agree with it but I can see why freedom of speech is taken into consideration more during specific events or circumstances.
I think it is important to note that while the Justices are influenced by their own subjective agendas, they are also influenced by the societal norms of the time they live in. It is interesting to see the underlying factors that go into deciding Free Speech cases and I think that is why specific tests are so needed because in changing times, they provide a baseline and foundation to build off of. However, it should be noted that the tests aren’t perfect either and often left up to interpretation.
It’s interesting to see how even though justices possess life tenure as a means of escaping from public pressure and accountability, they are still somewhat swayed by public problems such as the red scare in the ruling of some of their cases under the “clear and present danger” test
I agree with the Court on their decision to effectively end Smith Act punishments for Communist beliefs. I think that, in its very nature, violates the freedom of speech needed in a democratic system. Like mentioned in the previous few pages, a democracy needs a variety of ideas to stay alive and relevant in an ever changing society; restricting a political party simply because of their beliefs and the actions does not make sense unless they are actively telling their supporters to cause damage. I fully agree with the way the court switched their view on this.
I think these tests show how the justices and court have had to evolve and change how they decide cases as the evolution of language and discourse surrounding civil rights issues and expanidng partisanship. I think we may be on the cusp of a new test as the Jan 6th insurrection cases begin, and the issue of social media becomes more pervasive in politics.
Speech is powerful and more when it comes from famous people. Many people take actions because they are influenced by others thoughts. May at some point, people that gives hate speech or pass the limit of freedom of speech need to be pay consequences, But who will decide what is the limit of freedom of speech?
Justices making decisions according to the tests created for the protection of freedom of speech is crucial. The reading was very interesting because it explained the importance of Congress when freedom of speech brings substantial danger and how it acts to protect people from it.
This reading indicated the interpretation of the court in terms of the responsibility of congress. According to this, congress had a responsibility to censor any speech which might bring forth substantial danger. The test created in this reading was meant to be used to protect from speech which would incite danger- alluding to the power that speech has. Interestingly this reading also speaks about the fundamental importance that speech has to a democracy and the “importance” of censoring communist speech.
“It becomes quite clear that no matter what test or doctrine is used, or even whether one is used at all, individual judges invariably weigh or balance a number of factors and interests in reaching their decisions. It may well be that social circumstances and prevailing political forces set the terms of First Amendment jurisprudence.”
I think it’s important that we recognize the power that justices hold when it comes to deciding cases. While we may establish a variety of principles or doctrines that can apply to decisions, there is still a lot of influence that justices hold with these cases. Doctrines and principles are applied the way that justices choose to apply them, doctrines and principles are created in whatever way justices choose to create them. There’s a lot of influence that goes into a decision and it must be taken into account when analyzing the evolution of these decisions over time. The form of jurisprudence and the judicial affiliation of a justice or group of justices can drastically change the way that the court rules over time so it’s certainly something to look out for.
Sean NicholasOct 30, 2020
This brings up two new tests that are clearly highlighted within this post. Both of those being the clear and present danger and incitement to imminent lawless action test. I found it interesting that in the second one it really wasn’t talked about that much and nor was it acknowledged by the court…
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Brittany Tamayo
Brittany TamayoOct 30, 2020
So far, this reading has mentioned the clear and present danger test, and incitement to imminent lawless action test. As indicated on the top of the page, there are going to be many more tests that emerge. Was it because the Supreme Court could not get it right due to ambiguity? or is this because each case was different, with vastly different implications, which led to the emergence of a whole new test? I will be interested to see how this will change throughout the different cases.
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Rama Izar
Rama IzarOct 29, 2020
When comparing free speech to the establishment clause, for example, I think that it is much more broad. More specifically, I feel like the establishment clause has a specific three-prong test (Lemon test) and even though it over-simplifies the wall between church and state, it is still used today. However, before I have even started to look at free speech cases, I can tell that this will be much more ambiguous and require more tests (like the ones outlined here) than the Establishment Clause. In movies and shows, we always hear someone pull a free speech card, even if they’re saying something harmful (like hate speech). The broadness of what is protected under free speech makes it really difficult to define free speech, which is why there are so many tests.
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Emma Whaley
Emma WhaleyOct 21, 2020
The Supreme Court developed the clear and present danger test in Schenck v United States, to be used if such words are used in a circumstance or in a nature that they will bring about substantive evils that congress has a right to prevent. This test was used in a variety of cases around the time of the Cold War, like in the case of the 11 members of the group leaders of the American Communist Party, where it was seen that the knowledge of the existence of a group that aims to overthrow the government is deemed sufficient to justify the invasion of free speech as a restrictive government action. However, this test eventually lost prevalence, possibly due to its inadequacy or simply as a result of changes in the times, as McCarthy, a key protagonist of the Cold War era, passed away. The “incitement to imminent lawless action” test essentially replaced the clear and present danger test in Brandenburg v Ohio. Overall, I found it important that the book touched on the fact that judges ultimately decide the cases, not the tests or guidelines. I think that we can see that in these freedom of speech cases and in the religion cases, where the judges would interpret various prongs of the Lemon Test differently from case to case, or even between different court compositions. The court also just decided to stop using the Lemon Test at some point, in favor of “tradition and history” of our Nation. I think that a test is a good idea on paper, but I don’t think it translates well into real-life decisions by the court because not everything is always so black and white. What I mean by that is that there are multiple ways a judge could interpret what constitutes an “incitement” or a “clear and present danger” or even an “establishment of religion”.
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Jyah Vora
Jyah VoraOct 18, 2020
The background of the classic free speech cases emerged during WWI and WWII when individuals such as Senator McCarthy claimed that communists were infiltrating American life and were occupying positions in government and the military. The Democrats at the time did not want to look soft in dealing with Communists compared to their Republican counterparts and as a result, there were a lot of cases at the time restricting free speech and imprisoning individuals for petty reasons.
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Deleted user
Deleted userOct 25, 2019
It makes sense that there are so many tests to monitor speech because speech is very tricky since it can mean one thing but have a different underlying intent.
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Ines Josefina Castaneda
Ines Josefina CastanedaOct 22, 2019
Mala prohibita comes into mind when thinking of speech because most of may reasonably strike down certain speech but the consequences and how those consequences are applied changes as time goes by.
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Marissa Scavelli
Marissa ScavelliOct 22, 2019
I like how this reading brings up the fact that judges decide cases, not tests or doctrines. Throughout the semeser we have seen judges rely on”tests” significantly in their rulings, like the Lemon Test and now the Clear and Present Danger Test. The problem is that these tests can be objective since judges use different factors, beliefs, and interests to reach their decisions. There cannot be one perfect test for all the cases heard because there are always different issues and facts – thats why we rely on the courts to weigh out the factors and then decide. Tests can be a nice guide, but they shouldn’t be relied on so heavily.
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Deleted user
Deleted userOct 22, 2019
The last paragraph raises an extremely significant point – the Supreme Court sets precedent based on whose on the Court, although we love to believe it’s a nonpartisan body of government. The First Amendment and what is considered protected speech is going to change significantly in the near future, and with President Trump nominating and confirming his 2 Supreme Court nominees, and possibly even more due to the old age of RBG, Breyer – Trump’s court is going to set precedent for a very long time.
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Kevin Lyles
Kevin Lyles
Thanks, remember that we wrote this in 2010. I hope it is still relevant.
Oct 22, 2019•Delete
Deleted user
Deleted user
It definitely is still very relevant.
Oct 22, 2019•Delete