The Clear and Present Dangers of the Clear and Present Danger Test: Schenck and Abrams Revisited

From March 3 1919 to November 10 1919 Justice Oliver Wendell Holmes\u27s understanding of the First Amendment underwent a transformation In Schenck Debs and Frohwerk all decided in March 1919 Justice Holmes authored majority opinions that embraced a bad tendencies test as the constitutional standard required to regulate “ or even proscribe entirely “ political speech that includes a call to unlawful action Although Holmes used the language of a clear and present danger these decisions applied a very deferential standard of review and did not require the government to prove beyond a reasonable doubt the probability of political speech actually inciting unlawful conduct By way of contrast however by November 1919 and his iconic dissent in Abrams Holmes had experienced a serious change of heart His Abrams dissent uses the same general test “ a clear and present danger of speech causing unlawful conduct “ but requires that the harm be both serious and imminent Absent an imminent risk of serious harm the government must tolerate hyperbolic political speech that includes exhortations to engage in unlawful even criminal conduct such as calling for the violent overthrow of the federal governmentbrbrThis Essay part of a symposium marking the 100th anniversary of Schenk and Abrams traces and explains how Justice Holmes came to change his mind and embrace a robust vision of the First Amendment\u27s protection of core political speech At the same time however it also critiques the more robust iteration of the clear and present danger test because it does not effectively bar the door to government censorship of unpopular speech on a pretextual basis a point made with great force by Justices Black and Douglas in Brandenburg The AbramsBrandenburg articulation of the clear and present danger test permits judges to sustain government speech bans when the stakes seem sufficiently high “ and despite the absence of convincing evidence that the harms sought to be avoided would actually occur in the absence of a speech banbrbrDrawing on the iconic work of Professor Vince Blasi The Clear and Present Dangers of the Clear and Present Danger Test argues that judges should be most vigilant in protecting speech during pathological periods but posits that these are precisely the periods when judges are the least likely to exhibit civic courage At the end of the day however the Abrams dissent\u27s version of the clear and present danger test may be the best we can hope to do “ federal judges read the newspapers too and when social panic sweeps the nation it is unrealistic to expect them to wager the nation\u27s survival to protect speech ˜fraught with death even absent a compelling showing that an immediate check is required to save the country Absolute protection of even core political speech is probably too much to ask of federal judges “ as recent Supreme Court cases adopting and applying a bad tendencies approach demonstrate eg Humanitarian Law Project and Morse Nevertheless our experiment in democratic selfgovernment will be more vibrant and better capable of securing government accountability reliably if over the longer term the Holmes of Abrams prevails over the Holmes of Schenck in the federal courts and also in our national constitutional etho