Justice Oliver Wendell Holmes, Jr., Zechariah Chafee, Jr., and the Clear and Present Danger Test for Free Speech: The First Year, 1919

Abstract

TH near unanimity, historians have maintained that Justice Oliver Wendell Holmes, Jr., formulated a libertarian test for free speech in Schenck v. United States, decided by the Supreme Court on March 3, 1919. This case tested the constitutionality of the 1917 Espionage Act and provided the Court with an opportunity to voice its opinion regarding suppression of dissident anti-war opinions. In rendering the decision, Holmes promulgated the clear and present danger test for speech. His often quoted criterion was 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 was a matter of proximity and degree, Holmes continued, for the First Amendment to the Constitution protected no man in falsely shouting fire in a theatre and causing a panic.' According to the commonly accepted view, the liberal-minded Holmes struggled during 1919 to limit suppression of free speech by employing this danger test. His ability to restrain recalcitrant colleagues, however, proved unsuccessful. Soon the Court's majority abandoned Holmes' libertarian test, substituting in its place a bad tendency or remotely injurious tendency test. At that juncture, Holmes, joined by Justice Louis Brandeis, reverted to a familiar position, Holmes dissenting.2