Clear and present danger

In our history the Supreme Court has used a different tests in free speech cases.  One was called the “bad tendency” test, and was used in World War I to curb almost any speech the Court found might lead to illegal or seditious actions.  The second test, called the “clear and present danger” test was more lenient, allowing speech unless it posed an “imminent” threat.

In my Con Law classes I illustrated the bad tendency test this way:  Suppose I told the class that the government of the United States was corrupt and ought to be overthrown.  It is unlikely that anybody would run out and try that, but my remarks could have a “bad tendency,” influencing a member of the class to try later to overthrow the government.

My example for the “clear and present danger test went like this:   Suppose we were standing on the steps of the Capitol, I had a bullhorn, they had sticks and guns, and I shouted that the government was corrupt and should be overthrown RIGHT NOW!  That might present a “clear and present danger.”

Never in all those years did I actually think I would see people with bull horns, baseball bats, shields, chemicals to throw on guards, and probably guns actually on the steps of the U.S. Capitol, and then breaking windows to get inside, loot papers and artifacts, and attack Capitol police.

I never thought I’d see a lot of things I’ve seen in the last few weeks.

If you want to see examples of the two tests, look up Schenck v. U.S. (1917) and Gitlow v. New York (1925).  Gitlow was especially significant.  Not only did it use the clear and present danger test, but it also said the 14th Amendment applied the 1st Amendment’s guarantee of free speech to state governments.  Unfortunately for Gitlow, however, the Supreme Court then upheld poor Gitlow’s conviction.