Although Ruthenberg v. Michigan (1927) was dismissed, Justice Brandeis’s
used his dissent to later form arguments that expanded speech protection
under the First Amendment.
Clear and Present Danger Test
Early in the 20th century, the Supreme Court established the clear and present danger test as the predominant standard for determining when speech is protected by the First Amendment.
The Court crafted the test — and the bad tendency test, with which it is often conflated or contrasted — in cases involving seditious libels, that is, criticisms of the government, its officials, or its policies. It would be superseded by the imminent lawless action test in the late 1960s.
Justice Oliver Wendell Holmes Jr. delivered the classic statement of the clear and present danger test in Schenck v. United States (1919): “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.”
Following are Supreme Court cases related to the clear and present danger test.
Dennis v. United States (1951) applied the First Amendment clear and
present danger test to uphold the convictions of U.S.-based communists for
their political teachings.
Frohwerk v. United States (1919) upheld a conviction for an article
criticizing World War I while also affirming that First Amendment rights do
not disappear during wartime.
Schaefer v. United States (1920), which upheld convictions for reports
hindering the war effort, was representative of setbacks to First Amendment
freedoms during World War I.
Schenck v. United States (1919) demonstrated the limits to the First
Amendment during wartime and affirmed the conviction of Charles Schenck for
violating the Espionage Act.
In Abrams v. U.S., the Supreme Court in 1919 upheld the convictions of
several individuals under the 1918 Sedition Act for distributing leaflets
opposed to U.S. intervention in the Russian civil war involving the
In Brandenburg v. Ohio (1969), the Court ruled that speech advocating
illegal conduct is protected by the First Amendment unless it is likely to
incite “imminent lawless action.”