The "Clear and Present Danger" Test
The issue: What approach did the Court use in analyzing World War I era 
First Amendment cases involving subversive advocacy?

Modern First Amendment law can be said to have been born in a series of World War I era prosecutions for violation of the Espionage Act of 1917.  Although First Amendment claimants in those cases were 0 for 6 in the Supreme Court, their challenges sparked a debate within the Court that would eventually lead to a much more speech-protective jurisprudence.

The first of our cases, Schenck v United States, involves an appeal of the general secretary of the American Socialist Party, who had been convicted for distributing 15,000 leaflets to young men of draft age critical of the war effort and, especially, the draft.  The leaflet urged readers to "Assert your rights--Do not submit to intimidation."  Writing for the Court in Schenck, Justice Oliver Wendell Holmes asked whether "the words create a clear and present danger that they will bring about substantive evils Congress has a right to prevent?"  As used in Schenck, Holmes's test seemed to demand little more than that the government show that the words in the leaflet had a bad tendency--no proof was demanded that the words actually persuaded anyone to evade the draft, or even that they were highly likely to have that effect.  Schenck's conviction was upheld.

Debs v United States involved a speech, "Socialism is the Answer,"  given by Socialist Eugene Debs in 1918 before 1,200 persons in Ohio.  Debs was prosecuted for remarks such as: "I might not be able to say all that I think, but you need to know that you are fit for something better than slavery and common fodder."  Even though Debs's speech was milder than some made, for example, by George McGovern about the Viet Nam War during his 1972 presidential bid, the Supreme Court--again using its weak form of the clear-and-present-danger test (Does the speech have a bad tendency?)--voted to uphold the conviction and Deb's ten-year sentence.

"Jurors looked back into my eyes with the savagery of wild animals, saying by their manner, ' Away with the dwiddling, let us get at them.'"
--Federal judge commenting about jurors hearing Espionage Act cases during World War I.

In Abrams v United States we see the beginnings of a movement to a more speech-protective test.  Although the Court majority votes to uphold the Espionage Act convictions of Jacob Abrams and other anarchists who distributed leaflets attacking the U. S.'s decision to send troops to Europe to defend Czarist Russia against the Bolsheviks, Justices Holmes and Brandeis publish a powerful dissenting opinion.  Holmes argued that the "silly leaflet" of "poor and puny anonymities" posed no real danger to U. S. efforts, and thus failed to present a "clear and present danger" that the government might be justified in trying to suppress.  Writing that "the best test of truth is competition in the market" of ideas, Holmes urged his brethren to take their responsibities to enforce the First Amendment more seriously.

"I regret that I cannot put into more impressive words my belief that the defendants have been deprived rights under the Constitution of the United States."
--Justice Holmes, dissenting in Abrams v United States

Holmes and Brandeis dissent again in Gitlow v New York, a case involving the publication of "Left Wing Manifesto," a paper urging general strikes and critical of moderates who would seek changes only through the ballot box.  The Court upholds Gitlow's conviction, but significantly the Court agrees with Gitlow's position that states (as well as the federal government) are bound to comply with the commands of the First Amendment, as the protections have been "incorporated" through the due process clause of the Fourteenth Amendment.  The Court never again would question the applicability of the free speech protections to states.  In their dissent, Holmes and Brandeis argue that abstract advocacy of the form appearing in the "Manifesto" is protected by the First Amendment, and that the government must show that speech presents a real and immediate danger in order to be punishable.

Schenck v. United States (1919)
Debs v. United States (1919)
Abrams v. United States (1919)
Gitlow v. People of New York (1925)

Dennis v United States (1951)

Leaders of the Communist Party USA leaving a NYC federal courthouse in 1948

In 1951, the Supreme Court voted 6 to 2 to uphold the convictions of American Communist Party leaders for violating the Smith Act.  The 1940 Act prohibited the knowing advocacy of overthrow of the government by force.  The case was decided at the height of the Cold War, a time of "world crisis" according to the Court.  The Court applied a formulation of the clear and present danger test which asked whether the gravity of the evil, discounted by it improbability, justified the invasion of free speech.  Seeing the Communist Party (in the words of Justice Jackson's concurrence) as "a permanently organized, well-financed, semi-secret organization," the Court decided the danger was real and the threat imminent.  Justices Black and Douglas dissented.  Justice Douglas saw no evidence in the record to conclude the Party was a genuine threat, noting that they received less than 1% of the vote in recent elections.

Eugene Debs, Socialist Party candidate for President.

Russian emigres who dumped anarchist tracts from New York City buildings, leading to convictions which the Supreme Court considered in Abrams v U. S. (Jacob Abrams is at far right.)

Socialist Benjamin Gitlow, author of "Left Wing Manifesto"


1. In a 1908 case (Patterson v Colorado), Justice Holmes articulated the view that the First Amendment was concerned only with preventing prior restraints, not subsequent punishment for speech.  By the 1920s, he was identified as one of the judiciary's staunchest defenders of free speech principles.  What might account for this change?
2. Did the leaflet involved in Schenck incite young men to evade the draft?  Is it likely that the leaflet would convince some young men to evade the draft?  Should both of these things have to be shown to sustain a prosecution against a First Amendment challenge?  How much proof of obstructive effect should be required?
3.  The proposed test of Holmes and Brandeis in their Abrams dissent would require that the government show that the speech in question pose some real and immediate threat to U. S. war efforts--the fact that the speech might have a bad tendency is not enough.  Does the Holmes test offer more First Amendment protection for ineffective speech by "anonymities" than effective speech by "somebodies"?  If so, is this a good result?
4.  The Holmes dissent in Abrams is recognized as one of the great judicial opinions of all time.  Do you agree?  What makes it great?

"Conscription" [a skeleton tape measures a draftee]
Cartoon by H. J. Glintenkamp from August 1917 issue of The Masses.  This cartoon was one of three cited by the Postmaster as violating the Espionage Act (see below).

5.  Only one judicial decision in this era could be called a genuine First Amendment victory, Masses Publishing Co. v Patten (S. D. N. Y. 1917).  In Masses, Judge Learned Hand found that the postmaster's refusal to allow mailing of a revolutionary journal violated the First Amendment.  Hand proposed an incitement test, requiring focus on whether the words were "triggers to action" rather than "keys to persuasion."  Is the Hand approach preferable to that suggested by Holmes and Brandeis in their dissents?  Which test offers more protection?
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