Issue: The Clear and Present Danger Test

Abstract

Issue: The Clear and Present Danger Test On October 13, 1999, Howard University law professor Kenneth Tollett moderated a discus­ sion on the clear and present danger test. The following are the introductory remarks made by the participants, Walter Bems and Philippa Strum. Walter Berns: Justice Holmes writing in the Schenck case: “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 pre­ vent. It is a question ofproximity and degree.” I have long thought this test inadequate as a rule of law. Rather, it is a rule for prosecu­ tors or, perhaps, legislators. They, better than judges, are likely to know whether a danger is clear, and present—or, after the Abrams case, clear and “imminent”—or whether the “evil” is substantive—or, again after the Abrams case—“substantial” or “serious.” It seems to me that my doubts about the test, about its ad­ equacy as a rule of law, are confirmed in the history that Professor Laycock presents. The Court’s decision in Dennis v. United States was the decisive event in this history. As Professor Laycock rightly says, “clear and present never recovered from Dennis.” As I read his account, Dennis, a leaderoftheAmeri­ can Community Party, would not have been convicted under the test as formulated by Holmes. First, as to the new or reformulated test: it was drafted by Learned Hand in the Second Circuit Court ofAppeals and adopted by the Supreme Court. It read as follows: “In each case, courts must ask whether the gravity of the “evil,” discounted by its improbability, 188 JOURNAL OF SUPREME COURT HISTORY justifies such invasion offree speech as is nec­ essary to avoid the danger.”1 Professor Laycock believes this is significantly different from the test as formulated by Holmes in the Schenck case. I doubt that. Secondly, under the Holmes version, Schenck went to prison; underthe Hand version, Dennis went to prison. And, in each case, politics played a part, just as it played a part in the 1942 Korematsu case in which the Court upheld the relocation ofthe West Coast Japanese. My conclusion, and Pro­ fessor Laycock’s, is that something other than the clear and present danger test is needed to protect the right of free speech. That “something,” he believes, was pro­ vided by Justices Black and Douglas beginning in the Barenblatt case. As they made clear in subsequent cases, that “something” was to make free speech something ofan absolute. In doing this they went back to Holmes, not the Holmes who wrote in Schenck, but the Holmes who wrote in his dissent in Gitlow v. New York, where he said, and became famous for saying, “If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be ac­ cepted by the dominant forces of the commu­ nity the only meaning offree speech is that they should be given their chance and have their way.”2 Black reiterated this in his dissent in the 1961 case, Communist Party U.S.A. v. The SubversiveActivities ControlBoard. What this means is that it is worse to suppress the advo­ cacy of Stalinism than to be ruled by a domes­ tic Stalin. First Amendment scholars, particularly those under the aegis of the ACLU, speak of autonomous individuals as having antecedent rights against the state, including the right to say what they please irrespective of its effect on the state. As they would have it, the right protected by the First Amendment is a natural right. Now, it is true that this nation was founded by autonomous individuals, individu­ als living in the state ofnature, who could say whatever they wanted to say, irrespective of its effect on a state because there was no state in the state of nature. But it is also true, as “Publius” (John Jay, in this case) said in Fed­ eralist Paper No. 2, “Nothing is more certain thanthe indispensable necessity ofgovernment; and it is equally undeniable that whenever and however [government] is instituted, the people must cede...