clear and present danger — free speech vs. impermissible action

 

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http://www.bing.com/images/search?q=images+freedom+of+speech&qpvt=images+freedom+of+speech&FORM=IGRE#view=detail&id=6F2A23F3EA3D83E2BB036880B3DDB4EA9A89C78E&selectedIndex=27

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https://curtisnarimatsu.wordpress.com/2013/11/14/persecution-for-the-expression-of-opinions-seems-to-me-perfectly-logical-if-you-have-no-doubt-of-your-premises-or-your-power-and-want-a-certain-result-with-all-your-heart-you-naturally-express-your-w/

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http://en.wikipedia.org/wiki/Clear_and_present_danger#Importance

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Following Schenck v. United States, “clear and present danger” became both a public metaphor for First Amendment speech and a standard test in cases before the Court where a United States law limits a citizen’s First Amendment rights; the law is deemed to be constitutional if it can be shown that the language it prohibits poses a “clear and present danger”. However, the “clear and present danger” criterion of the Schenck decision was replaced in 1969 by Brandenburg v. Ohio, and the test refined to determine whether the speech would provoke an “imminent lawless action“.

The vast majority of legal scholars have concluded that in writing the Schenck opinion Justice Holmes never meant to replace the “bad tendency” test which had been established in the 1868 English case R. v. Hicklin and incorporated into American jurisprudence in the 1904 Supreme Court case U.S. ex rel. Turner v. Williams. This is demonstrated by the use of the word “tendency” in Schenck itself, a paragraph in Schenck explaining that the success of speech in causing the actual harm was not a prerequisite for conviction, and use of the bad-tendency test in the simultaneous Frohwerk v. United States and Debs v. United States decisions (both of which cite Schenck without using the words “clear and present danger”).

However, a subsequent essay by Zechariah Chafee titled “Freedom of Speech in War Time” argued despite context that Holmes had intended to substitute clear and present danger for the bad-tendency standard– “cpd” a more protective standard of free speech.  Bad tendency was a far more ambiguous standard where speech could be punished even in the absence of identifiable danger, and as such was strongly opposed by the fledgling American Civil Liberties Union and other libertarians of the time.

Having read Chafee’s article, Holmes decided to retroactively reinterpret what he had meant by “clear and present danger” and accepted Chafee’s characterization of the new test in his dissent in Abrams v. United States just six months after Schenck. Significantly unlike Abrams, the cases of Schenck, Frohwerk, and Debs had all produced unanimous decisions.

Brandenburg

For two decades after the Dennis decision, free speech issues related to advocacy of violence were decided using balancing tests such as the one initially articulated in Dennis.

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In 1969, the court established stronger protections for speech in the landmark case Brandenburg v. Ohio which held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action.”

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Brandenburg is now the standard applied by the Court to free speech issues related to advocacy of violence.

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