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What does "Clear and Present Danger" Mean?
Mary McMahon
Mary McMahon
In the law of the United States, the phrase "clear and present danger" reflected a test which was used in courts to determine whether or not laws restricting speech were constitutional until 1969, when it was replaced by the concept of "imminent lawless action." In a nutshell, it was determined that if speech created a clear and present danger to public safety, it would not be considered legally protected free speech. In such cases, the government would be within its rights to limit it.
This phrase comes from Schenck v. United States, 249 U.S. 47 (1919), a case in which the restrictive laws about "subversive activities" enacted in response to the First World War were challenged. In this case, a man who distributed antiwar pamphlets to men of draft age claimed that he had a right to do so because the pamphlets were protected under free speech law. Writing for the Supreme Court, Justice Oliver Wendell Holmes, Jr. disagreed, stating that the government did in fact have a right to regulate speech which posed a clear and present danger to safety. The example he used was shouting "fire" in a crowded theater when no fire was present; he believed that wartime restrictions on speech were reasonable since it was a national security matter.
This concept was applied to a number of cases between 1919 and 1969 in which people ran afoul of laws designed to limit free speech in the interests of public safety. Doing things like inciting riots or lynch mobs and publishing the identities of secret agents were considered a clear and present danger because they posed a risk to individual people and/or national security.
Although the concept of clear and present danger played an important role in American law, over time the government's approach to speech began to evolve. The Supreme Court and other legal advocates began to argue more in favor of fewer restrictions on speech. They argued that the government could not suppress dissent, although it still had a right to limit speech which could lead to immediate lawlessness or physical harm.
With Brandenburg v. Ohio 395 US 444 (1969), the concept was changed to "imminent lawless action." In this case, speech such as handing out antiwar pamphlets would have been protected, but inciting illegal activity which could occur before law enforcement had an opportunity to respond would not be protected. Thus, situations like speeches to incite lynch mobs could still be limited under the law.
Mary McMahon
Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a WiseGEEK researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.
Learn more...
Mary McMahon
Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a WiseGEEK researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.
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Discussion Comments
@allenJo - I am more worried about the blurring of the lines between clear and present danger and political correctness.
Some positions are simply not politically correct, like churches taking a stand against the gay lifestyle. Do they have the right to their stance? They certainly do; it’s their dogma, whether you agree with it or not.
But what if the government steps in and says that such speech could incite violence against homosexuals? Consequently they try to restrain such expressions of free speech, under the tenuous assertion that is a clear and present danger to certain classes of people in our society.
Do you see what I mean? I think the government should exercise less power, not power, over free speech. I just don’t trust government’s best intentions.
@SkyWhisperer - Is it really possible to incite mobs nowadays like they did during the days of lynching and riots borne of political unrest? I tend to think that it’s harder actually.
People tend to be more skeptical of stump speeches than they used to be, and of course we have so many channels of communication. Whatever you say is going to be analyzed and dissected by so many sources of news and opinion that I don’t think many people will take you seriously.
@nony - It’s true that we live in a different age. Sometimes there is no clear and present danger but we are told that there is. For example, if some guy in Australia does a “document dump” of classified government documents, is that a clear and present danger?
If you believe the government line, then it is; judging from the article, similar activities in the past (like disclosing secret agent identities) were considered as such. Personally, I take some of these claims with a grain of salt.
But I do believe that we have some responsibility in the way we express our opinions. We shouldn't need laws or threats to tell us that.
We’ve come a long way since the era of subversive activities. However, let’s not kid ourselves. The concept of clear and present danger is still alive and well in my opinion, whether you call it imminent danger or whatever.
In the aftermath of the terrorist attacks on the United States, the U.S. government took bold action to initiate activities meant to preempt another terrorist strike. This meant lots and lots of eavesdropping, even on U.S. citizens I believe.
It also meant that if you said the wrong thing you could get a knock on your door by the secret service or FBI. Of course it would have to be a serious infraction for that to occur.
For example, if you sent out an email with the word “bomb” or “terrorist attack,” your email could be screened by the government and possibly followed up further if they thought you were a threat. The fact remains, you still don’t have unbridled free speech any more than you did years ago.
@JessicaLynn - I'm not sure, but if you saw that gentleman out there multiple times, I'm assuming he never got arrested and thrown in jail because of what he was saying.
I think it's interesting that one of the main things that caused this legal decision is people recommending dodging the draft. I have to wonder if we would ever have ended up with a law limiting speech at all if the draft hadn't happened in the 1960s.
After all, it was bad for the government if people started dodging the draft. The old law from 1919 discussed subversive activities, but I'm assuming it didn't delve as deeply into the issues of speech.
@starrynight - I agree with you, but I kind of wonder how they decide stuff like this. I mean, where I used to live there was a homeless guy that used to stand on the street and spout nonsense and urge people to overthrow the government. He was promoting and unlawful action, but as far as I know he never actually caused anyone to act.
So is what he was saying legal because no one listened to him? Or still illegal because maybe one day someone might hear what he's saying and actually try to overthrow the government?
I think it's very interesting to see how ideas about free speech have evolved over the years. I definitely think imminent lawless action is a bit more relaxed than the clear and present danger part of the old law was.
I think this is as it should be. Free speech is important, and as long as it's not directly inciting other people to actually break the law, people should be able to say what they want. It's always difficult, especially when we don't agree with what people are saying. However, I think censorship is a slippery slope, so we should err on the side of caution with free speech.
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