Essay: Freedom of speech – clear and present danger test

It is widely assumed that the freedom of speech permits American citizens to say whatever they want to say whenever they want to say it. Throughout the course of history, however, this right to freedom of speech has been challenged and submitted to various tests created by the United States Supreme Court. Beginning with the creation of the bad tendency test in Patterson v. Colorado (1907), freedom of speech has also been subjected to the clear and present danger test, brought in by Schenck v. United States (1919), and later the preferred freedoms doctrine, established by Murdock v. Pennsylvania (1943).
As previously mentioned, the landmark Supreme Court case, Schenck v. United States (1919) saw the introduction of the clear and present danger test into the court system. This case was the first in a series of cases that created the modern definition and interpretation of the First Amendment. The United States had decided to enter World War I, a decision met with great opposition from American citizens, and Charles Schenck was not immune to such strong feelings. The problem arose when Schenck  mailed out around 15,000 pamphlets, urging men to resist the Draft. He believed it in their basic rights to refuse to go to war and fight a battle they did not believe in. Charles Schenck also argued that this obligatory enlistment for service was a form of involuntary servitude and that this was in direct violation of the Thirteenth Amendment. (Recall that the Thirteenth Amendment abolished slavery and involuntary servitude.)
Charles Schenck had been tried for and convicted of violating the Espionage Act of 1917, which prohibited interference with military recruitment. Schenck appealed his case to the Supreme Court, claiming that his conviction was based on violation of his First Amendment right to freedom of speech. In a unanimous ruling, the Court agreed that Charles’ conviction was indeed constitutional. Justice Holmes stated, “The question in every case 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. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”
The Supreme Court thus established the clear and present danger test, believing that the freedom of speech was a situational right that had a varying scope depending on the situation of the times. Things that are freely said in a time of peace can be prohibited during times of war. If the Court believed that the speech presented a clear and present danger to the United States, then such speech could not be protected under the First Amendment. This test ultimately determined the circumstances under which the freedoms of speech, press, or assembly could be limited. However, it should be mentioned that the Courts did not formally adopt the clear and present danger test, despite its creation in this trial.
Prior to the standardization of the clear and present danger test, the Court used the bad tendency test, established by the 1907 case Patterson v. Colorado. In the aforementioned case, a newspaper publisher published articles and a cartoon that criticized the judges of the Colorado Supreme Court and claimed that the judges were acting on behalf of local utility companies rather than on their own judicial and moral accord. Patterson was charged with contempt and defended himself by stating that it was his duty to the public to expose the immoral actions of the Court. The motions were denied, so Patterson appealed his case, arguing that the Colorado Supreme Court should not be able to sit in judgment of its own behavior. The Supreme Court of the United States heard the case and utilized the bad tendency test to uphold the contempt charges against Patterson. This test allows for the government to restrict the freedom of speech so long as this speech was believed to have a sole tendency of encouraging or generating illegal acts.
While it was thought that the Schenck v. United States (1919) case and the creation of the clear and present danger test overturned the bad tendency test, the latter continued to be used beginning again with Abrams v. United States (1919). In this case, the bad tendency test was used to uphold the conviction of a Russian immigrant creating and spreading leaflets that called for strike and revolution. Throughout the early twentieth century, the bad tendency test was utilized regularly in the Courts but slowed down when its implementation resulted in a series of politically incorrect rulings. Despite this slow-down the test lasted, to some degree, until it was finally and officially put to rest by the establishment of “imminent lawless action” in Brandenburg v. Ohio in 1969.