{ "id": "epfdn12yzg", "slug": "clear-and-present-danger-epfdn12yzg", "title": "Clear and present danger", "updated": "2026-10-25", "topic_path": [ { "id": "society", "label": "Society and history", "api_url": "https://www.edgepedia.org/api/v1/topics/society" }, { "id": "society.law", "label": "Law and justice", "api_url": "https://www.edgepedia.org/api/v1/topics/society.law" }, { "id": "society.law.practice", "label": "Courts and legal practice", "api_url": "https://www.edgepedia.org/api/v1/topics/society.law.practice" }, { "id": "society.law.practice.institutions", "label": "Courts and justice institutions", "api_url": "https://www.edgepedia.org/api/v1/topics/society.law.practice.institutions" }, { "id": "society.law.practice.institutions.scotus", "label": "Supreme Court of the United States", "api_url": "https://www.edgepedia.org/api/v1/topics/society.law.practice.institutions.scotus" }, { "id": "society.law.practice.institutions.scotus_cases", "label": "US Supreme Court case law and lists", "api_url": "https://www.edgepedia.org/api/v1/topics/society.law.practice.institutions.scotus_cases" }, { "id": "society.law.practice.institutions.scotus_landmark_cases", "label": "Landmark US Supreme Court cases", "api_url": "https://www.edgepedia.org/api/v1/topics/society.law.practice.institutions.scotus_landmark_cases" }, { "id": "society.law.practice.institutions.scotus_landmark_cases.first_amendment_cases", "label": "Landmark First Amendment cases", "api_url": "https://www.edgepedia.org/api/v1/topics/society.law.practice.institutions.scotus_landmark_cases.first_amendment_cases" } ], "geo": [ { "id": "geo.us.t1800.society.law.practice.institutions.scotus_cases", "label": "United States · 1800 to 1945: US Supreme Court case law and lists", "api_url": "https://www.edgepedia.org/api/v1/geo/geo.us.t1800.society.law.practice.institutions.scotus_cases", "path": [ { "id": "geo.us", "label": "United States", "api_url": "https://www.edgepedia.org/api/v1/geo/geo.us" }, { "id": "geo.us.t1800", "label": "United States · 1800 to 1945", "api_url": "https://www.edgepedia.org/api/v1/geo/geo.us.t1800" }, { "id": "geo.us.t1800.society", "label": "Society and history", "api_url": "https://www.edgepedia.org/api/v1/geo/geo.us.t1800.society" }, { "id": "geo.us.t1800.society.law", "label": "Law and justice", "api_url": "https://www.edgepedia.org/api/v1/geo/geo.us.t1800.society.law" }, { "id": "geo.us.t1800.society.law.practice", "label": "Courts and legal practice", "api_url": "https://www.edgepedia.org/api/v1/geo/geo.us.t1800.society.law.practice" }, { "id": "geo.us.t1800.society.law.practice.institutions", "label": "Courts and justice institutions", "api_url": "https://www.edgepedia.org/api/v1/geo/geo.us.t1800.society.law.practice.institutions" }, { "id": "geo.us.t1800.society.law.practice.institutions.scotus", "label": "Supreme Court of the United States", "api_url": "https://www.edgepedia.org/api/v1/geo/geo.us.t1800.society.law.practice.institutions.scotus" }, { "id": "geo.us.t1800.society.law.practice.institutions.scotus_cases", "label": "US Supreme Court case law and lists", "api_url": "https://www.edgepedia.org/api/v1/geo/geo.us.t1800.society.law.practice.institutions.scotus_cases" } ] } ], "excerpt": "Clear and present danger is a United States First Amendment doctrine, articulated by Justice Holmes Jr. in Schenck v. United States in 1919. It limits protected speech when threatening substantive evils.", "snippet": "Clear and present danger is a United States First Amendment doctrine, articulated by Justice Holmes Jr. in Schenck v. United States in 1919. It limits protected speech when threatening substantive evils.", "node": "society.law.practice.institutions.scotus_landmark_cases.first_amendment_cases", "markdown": "# Clear and present danger\n\n**Clear and present danger** is a doctrine of United States First Amendment law, first stated by Justice Oliver Wendell Holmes Jr. in *Schenck v. United States* (1919), under which speech loses constitutional protection when, in its circumstances, it creates a clear and present danger of bringing about substantive evils that Congress has the right to prevent. Holmes framed the inquiry as \"a question of proximity and degree.\"[1](https://supreme.justia.com/cases/federal/us/249/47/) The test, which succeeded the Court's previous bad-tendency approach to determining when government may punish speech, and although it has been superseded in incitement cases by the *Brandenburg v.[22](https://www.law.cornell.edu/supremecourt/text/339/382) Ohio* (1969) test of imminent lawless action, it remains a reference point in free speech scholarship and doctrine.[2](https://www.law.cornell.edu/wex/clear_and_present_danger) • [3](https://scholarship.law.nd.edu/ndlr/vol94/iss4/5/)\n\n| Key fact | Detail |\n|---|---|\n| Origin | Articulated by Justice Holmes for a unanimous Court in *Schenck v. United States*, 249 U.S. 47 (1919), upholding Espionage Act convictions for distributing 15,000 anti-draft leaflets[1](https://supreme.justia.com/cases/federal/us/249/47/) |\n| Core formulation | Speech is punishable when its words, \"in such circumstances and ... of such a nature,\" create a clear and present danger of the substantive evils Congress may prevent; \"a question of proximity and degree\"[1](https://supreme.justia.com/cases/federal/us/249/47/) |\n| Requirements | Two independent conditions: the speech must threaten that a substantive evil might follow, and the threat must be real and imminent[2](https://www.law.cornell.edu/wex/clear_and_present_danger) |\n| Reformulation | In *Dennis* (1950–1951), Judge Learned Hand's version weighed \"the gravity of the evil, discounted by its improbability\" against the mischief of repression[4](https://firstamendment.mtsu.edu/article/clear-and-present-danger-test/) |\n| Successor | *Brandenburg v. Ohio* (1969) replaced the test with the imminent lawless action test, protecting speech unless it is directed to inciting and likely to produce imminent lawless action[5](https://www.law.cornell.edu/wex/brandenburg_test) |\n| Continuing influence | The test is the shaping force behind *Brandenburg* and the dominant popular account of when incendiary speech loses protection; courts fall back on its principles where no articulated standard exists[3](https://scholarship.law.nd.edu/ndlr/vol94/iss4/5/) |\n\n## Origins in Schenck\n\n*Schenck v. United States* arose from the [Espionage Act of 1917](https://www.edgepedia.org/espionage-act-of-1917), which Congress passed after the United States entered World War I. Charles Schenck, general secretary of the Socialist Party in Philadelphia, and Elizabeth Baer printed and mailed 15,000 leaflets arguing that the draft violated the Thirteenth Amendment's prohibition of involuntary servitude and urging men to resist it peacefully, for example by petitioning for repeal. A unanimous Court, in an opinion by Holmes, affirmed their convictions.[1](https://supreme.justia.com/cases/federal/us/249/47/) • [6](https://www.law.cornell.edu/wex/schenk_v_united_states_%281919%29)\n\nHolmes held that the First Amendment does not protect speech that creates a clear and present danger of a significant evil Congress may prevent, and that context matters: the same words would be protected \"in many places and in ordinary times,\" but \"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.\"[1](https://supreme.justia.com/cases/federal/us/249/47/) The opinion introduced the famous example that the most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.[1](https://supreme.justia.com/cases/federal/us/249/47/) In the same month the Court unanimously affirmed similar convictions in *Frohwerk* and *Debs*, with Holmes explaining that the First Amendment was never intended \"to give immunity for every possible use of language.\"[7](https://www.law.cornell.edu/constitution-conan/amendment-1/advocacy-of-illegal-conduct-early-doctrine)\n\nThe test was distinct from the older __bad tendency__ test, which predominated in English common law and was later articulated in *Gitlow v. New York*; Holmes distinguished the two in *Schenck* itself.[4](https://firstamendment.mtsu.edu/article/clear-and-present-danger-test/) In practice, however, the early decisions applied a deferential standard: judges routinely found clear and present danger in speeches and pamphlets that by modern standards were ordinary political dissent.[8](https://legalclarity.org/clear-and-present-danger-origins-test-and-modern-law/)\n\n## The Abrams shift\n\nHolmes's understanding changed within a single year. In the March 1919 cases he accepted a very permissive application of the danger language, without requiring the government to prove the probability that speech would actually incite unlawful conduct. By November 10, 1919, in his dissent in *Abrams v. United States*, joined by Justice Louis Brandeis, Holmes used the same general test but required that the harm be both serious and imminent; absent such a risk, government had to tolerate hyperbolic political speech, including calls for the violent overthrow of the government. The *Abrams* dissent also gave First Amendment law the \"marketplace of ideas\" metaphor.[9](https://scholarship.law.ua.edu/fac_articles/252/) • [3](https://scholarship.law.nd.edu/ndlr/vol94/iss4/5/) The dissent became, together with *Schenck*, a basic authority for the more protective version of the standard that dominated free speech doctrine in the 1940s.[10](https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/abrams-v-united-states-250-us-616-1919)\n\n## Dennis and the balancing reformulation\n\nFrom 1940 to 1951 the Court applied the clear and present danger test in 12 cases. The approach shifted with *American Communications Association v. Douds* (1950), where Chief Justice Fred Vinson wrote that when a statute's effect on First Amendment freedoms is small and the public interest substantial, \"a rigid test requiring a showing of imminent danger to the security of the Nation is an absurdity.\"[4](https://firstamendment.mtsu.edu/article/clear-and-present-danger-test/)\n\nIn *United States v. Dennis* (1950), Judge Learned Hand of the Second Circuit reformulated the standard: \"Clear and present danger depends upon whether the mischief of the repression is greater than the gravity of the evil, discounted by its improbability.\" Vinson embraced this phrasing when *Dennis v. United States* reached the Supreme Court in 1951, which upheld the convictions of Communist Party leaders based on abstract Marxist doctrine with no evidence of a concrete plan to overthrow the government.[4](https://firstamendment.mtsu.edu/article/clear-and-present-danger-test/) • [11](https://www.positiveliberty.com/the-clear-and-present-danger-test-explained/) Commentators observed that although *Dennis* applied the test by name, Hand's sliding scale in practice required much less than the Holmesian formulation.[12](https://ufdcimages.uflib.ufl.edu/UF/E0/04/66/02/00001/CARNLEY_K.pdf)\n\n## Brandenburg and replacement\n\nThe modern incitement rule arrived in *Brandenburg v. Ohio* (1969), a case involving a [Ku Klux Klan](https://www.edgepedia.org/ku-klux-klan) leader convicted under an Ohio criminal syndicalism statute after a filmed rally in which a speaker suggested \"revengeance\" might be needed against government suppression of the white race. [The Court](https://www.edgepedia.org/the-court) held that abstract advocacy of lawlessness is protected speech, and announced a two-part test: advocacy loses First Amendment protection only if it is (1) directed to inciting or producing imminent lawless action and (2) likely to incite or produce such action.[13](https://www.mdcourts.gov/data/opinions/cosa/1998/1855s96.pdf) • [5](https://www.law.cornell.edu/wex/brandenburg_test) This standard is more stringent than the clear and present danger language it displaced; it protects advocacy unless the government proves both directedness and imminence.[14](https://law.justia.com/cases/federal/appellate-courts/ca9/19-50189/19-50189-2021-03-04.html)\n\nThe replacement was tacit rather than express. The Supreme Court has never directly overruled *Schenck*'s test, but two concurring Justices in *Brandenburg* rejected it outright: Justice [Hugo Black](https://www.edgepedia.org/hugo-black) wrote that \"the 'clear and present danger' doctrine should have no place in the interpretation of the First Amendment,\" and Justice William O. Douglas, reviewing how the test had actually been applied, saw \"great misgivings,\" remarking that the threatened harms \"were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous.\"[15](https://law.justia.com/cases/federal/appellate-courts/ca4/19-4550/19-4550-2020-08-24.html) Justice David Souter later described the evolution plainly: the clear and present danger test of *Schenck* \"evolved into the modern incitement rule of Brandenburg v. Ohio.\"[16](https://law.justia.com/cases/federal/appellate-courts/caaf/23-0207-AF/23-0207-AF-2024-11-26.html)\n\n## Criticism and continuing influence\n\nJudicial and scholarly commentary on the test has on the whole been negative, from two directions: critics have found it insufficiently protective of free speech, and others have found that it unduly limits the legislature's ability to protect society from harmful advocacy.[17](https://lawcat.berkeley.edu/record/1111756/files/fulltext.pdf) Leslie Kendrick, professor at the University of Virginia School of Law, identifies the most frequent criticisms as difficulty of application and ease of manipulation, and notes that the test has been attacked for depending too much on circumstances, giving judges too much discretion and failing to give speakers notice of the legality of their activities.[3](https://scholarship.law.nd.edu/ndlr/vol94/iss4/5/) • [18](https://www.supremecourt.gov/DocketPDF/20/20-1135/168901/20210212132237207_Completed%20Appendix.pdf) Ronald Krotoszynski, professor at the University of Alabama School of Law, argues that the Abrams-[Brandenburg](https://www.edgepedia.org/brandenburg) articulation still permits judges to sustain speech bans when the stakes seem high, without convincing evidence that the harms would occur absent a ban, and that judges are least likely to protect speech during the \"pathological\" periods when protection matters most.[9](https://scholarship.law.ua.edu/fac_articles/252/)\n\nThe test nonetheless retains force. Kendrick writes that it is \"the shaping force behind Brandenburg and the dominant popular articulation of when incendiary or objectionable speech loses its protection,\" that it informs state laws on unlawful assembly and breach of the peace, and that when courts meet speech lacking a clearly articulated standard they often fall back on the principles of clear and present danger or *Brandenburg*, whether or not they fit the area.[3](https://scholarship.law.nd.edu/ndlr/vol94/iss4/5/) Cass R. Sunstein, the Robert Walmsley University Professor at [Harvard Law School](https://www.edgepedia.org/harvard-law-school), has examined the test through cost-benefit analysis: under regulatory law the dominant test asks whether the benefits of regulation justify the costs, but free speech law forbids censoring political speech on that basis alone. Sunstein argues that the test's best practical justification is that the speech it immunizes has not proved especially harmful, so the benefits of the test justify its costs; he adds that this assessment was probably correct for the United States from 1960 until 2001, but that fair questions arise today about recruitment to terrorism, pro-terrorist speech, and certain kinds of \"fake news.\"[19](https://scholarship.law.cornell.edu/clr/vol104/iss7/3/)\n\nThe phrase also lives on in political rhetoric beyond doctrine. [Donald Trump Jr.](https://www.edgepedia.org/donald-trump-jr) invoked it in 2025 to defend airstrikes on alleged drug boats, arguing that drug cartels pose \"a far greater clear and present danger to the United States than anything going on in Ukraine and Russia,\" and federal officials discussed the theme in 2021 amid Covid-19 misinformation debates.[20](https://www.theatlantic.com/politics/2025/12/trump-boat-strikes-war-venezuela/685199/) • [21](https://www.lemonde.fr/en/international/article/2025/01/20/how-free-speech-became-the-weapon-of-conservatives-in-the-us_6737218_4.html)\n\n## References\n\n1. [Schenck v. United States, 249 U.S. 47 (1919), Justia U.S. Supreme Court Center](https://supreme.justia.com/cases/federal/us/249/47/)\n2. [clear and present danger, Wex, Legal Information Institute, Cornell Law School](https://www.law.cornell.edu/wex/clear_and_present_danger)\n3. [Leslie Kendrick (2019). On \"Clear and Present Danger\", 94 Notre Dame L. Rev. 1653](https://scholarship.law.nd.edu/ndlr/vol94/iss4/5/)\n4. [Clear and Present Danger Test, The First Amendment Encyclopedia, Middle Tennessee State University](https://firstamendment.mtsu.edu/article/clear-and-present-danger-test/)\n5. [Brandenburg test, Wex, Legal Information Institute, Cornell Law School](https://www.law.cornell.edu/wex/brandenburg_test)\n6. [Schenck v. United States (1919), Wex, Legal Information Institute, Cornell Law School](https://www.law.cornell.edu/wex/schenk_v_united_states_%281919%29)\n7. [Advocacy of Illegal Conduct: Early Doctrine, U.S. Constitution Annotated, Legal Information Institute](https://www.law.cornell.edu/constitution-conan/amendment-1/advocacy-of-illegal-conduct-early-doctrine)\n8. [Clear and Present Danger: Origins, Test, and Modern Law, LegalClarity](https://legalclarity.org/clear-and-present-danger-origins-test-and-modern-law/)\n9. [Ronald J. Krotoszynski Jr. (2018). The Clear and Present Dangers of the Clear and Present Danger Test: Schenck and Abrams Revisited](https://scholarship.law.ua.edu/fac_articles/252/)\n10. [Abrams v. United States 250 U.S. 616 (1919), Encyclopedia.com](https://www.encyclopedia.com/politics/encyclopedias-almanacs-transcripts-and-maps/abrams-v-united-states-250-us-616-1919)\n11. [The Clear and Present Danger Test Explained, Positive Liberty](https://www.positiveliberty.com/the-clear-and-present-danger-test-explained/)\n12. [Carnley thesis, University of Florida Digital Collections](https://ufdcimages.uflib.ufl.edu/UF/E0/04/66/02/00001/CARNLEY_K.pdf)\n13. [Maryland Court of Special Appeals opinion discussing Brandenburg](https://www.mdcourts.gov/data/opinions/cosa/1998/1855s96.pdf)\n14. [United States v. Rundo, No. 19-50189 (9th Cir. 2021), Justia](https://law.justia.com/cases/federal/appellate-courts/ca9/19-50189/19-50189-2021-03-04.html)\n15. [United States v. Miselis, No. 19-4550 (4th Cir. 2020), Justia](https://law.justia.com/cases/federal/appellate-courts/ca4/19-4550/19-4550-2020-08-24.html)\n16. [U.S. v. Smith, No. 23-0207-AF (C.A.A.F. 2024), Justia](https://law.justia.com/cases/federal/appellate-courts/caaf/23-0207-AF/23-0207-AF-2024-11-26.html)\n17. [Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger, California Law Review](https://lawcat.berkeley.edu/record/1111756/files/fulltext.pdf)\n18. [Supreme Court docket appendix citing Kendrick and Douglas](https://www.supremecourt.gov/DocketPDF/20/20-1135/168901/20210212132237207_Completed%20Appendix.pdf)\n19. [Cass R. Sunstein (2020). Does the Clear and Present Danger Test Survive Cost-Benefit Analysis?, 104 Cornell L. Rev. 1775](https://scholarship.law.cornell.edu/clr/vol104/iss7/3/)\n20. [The Atlantic, What Explains Trump's Aggression Toward Venezuela?](https://www.theatlantic.com/politics/2025/12/trump-boat-strikes-war-venezuela/685199/)\n21. [Le Monde, How 'free speech' became the weapon of conservatives in the US](https://www.lemonde.fr/en/international/article/2025/01/20/how-free-speech-became-the-weapon-of-conservatives-in-the-us_6737218_4.html)\n22. [AMERICAN COMMUNICATIONS ASS'N, C.I.O., et al. v. DOUDS. UNITED STEEL WORKERS OF AMERICA et al. v. NATIONAL LABOR RELATIONS BOARD.](https://www.law.cornell.edu/supremecourt/text/339/382)\n\n---\n*Topic: Encyclopedia › Society and history › Law and justice › Courts and legal practice › Courts and justice institutions › Supreme Court of the United States › US Supreme Court case law and lists › Landmark US Supreme Court cases › Landmark First Amendment cases*\n\n*Initially written Sep 17, 2026 · Reviewed: Oct 25, 2026 · Edited: Oct 15, 2026; Oct 25, 2026 · Last review: Oct 25, 2026*\n\n*Copyright 2026 EdgeChat AI, a subsidiary of Biostate AI.*\n\nLicense: Edgepedia Community License 1.0, https://www.edgepedia.org/edgepedia/license\n", "same_as": [], "url": "https://www.edgepedia.org/clear-and-present-danger-epfdn12yzg", "markdown_url": "https://www.edgepedia.org/clear-and-present-danger-epfdn12yzg.md", "license": { "name": "Edgepedia Community License 1.0", "url": "https://www.edgepedia.org/edgepedia/license", "summary": "Free with credit, commercial use included. AI training is open to everyone. For other uses, organizations over USD 100M in revenue or 100M monthly users license separately.", "spdx": "LicenseRef-Edgepedia-Community-1.0" }, "credit": "\"Clear and present danger\", Edgepedia (EdgeChat), https://www.edgepedia.org/clear-and-present-danger-epfdn12yzg. Edgepedia Community License 1.0.", "credit_md": "\"[Clear and present danger](https://www.edgepedia.org/clear-and-present-danger-epfdn12yzg)\", Edgepedia (EdgeChat), [https://www.edgepedia.org/clear-and-present-danger-epfdn12yzg](https://www.edgepedia.org/clear-and-present-danger-epfdn12yzg). [Edgepedia Community License 1.0](https://www.edgepedia.org/edgepedia/license).", "credit_html": "\"Clear and present danger\", Edgepedia (EdgeChat), https://www.edgepedia.org/clear-and-present-danger-epfdn12yzg. Edgepedia Community License 1.0.", "speakable": "Clear and present danger is a United States First Amendment doctrine, articulated by Justice Holmes Jr. in Schenck v. United States in 1919." }