The Clear and Present Danger Test

Abstract

The Clear and Present Danger Test Douglas Laycock “Clear and present danger” is one of a very few phrases that passed from a Supreme Court opinion into the public imagination and common vocabulary. Just in the week before this article was delivered as a lecture at the Court in October 1999, the wife ofa Presidential candidate said that racism“is a clearandpresentdanger;”1 the Secretary ofthe Air Force warned ofa clear and present danger to the quality ofthe research force at Air Force labs;2 scholarly commentators described a clearand present dangerto the neighbors ofrogue states,3 and ofa credit crisis in EastAsia;4 and a columnist decried the clear and present danger of“the subsidy ideology.”5 The week before that, the President warned about the clear and present danger ofterrorism,6 and a United States Senator denouncedthe clear and present danger ofgun violence.7 The week before that, the New YorkPost reported a clear and present danger to the Mets in the bottom ofthe eighth.8 The phrase has spread around the world to where ever English is written; I found quite recent examples from Toronto,9 Sydney,10 Canberra,11 Jakarta,12 Jerusalem,13 Tel Aviv,14 Ankara,15 and General Santos City, The Philippines, where City Councilor Florentina Congson said that imported fish pose a clear and present danger to the city’s fishing industry.16 All told, I found 1,807 appear­ ances of“clearand present danger” in newspapers and magazines fromthe beginning of 1998 to the week ofthis lecture in October 1999.17 No other phrase coined by the Supreme Court appeared so often.18 “Clearandpresentdanger” appears inthetitle ofeightbooks in my University’s library, on top­ ics from freedom of speech to surging polar ice streams.19 It was the title of a Harrison Ford movie20 based on a Tom Clancy technothriller,21 and no doubt vastly more people learned it from Harrison Ford than from Justice Holmes. But like the less famous authors before him, Clancy chose the phrase in part because it would be fa­ miliar and evocative. “Clear and present dan­ ger” has had an eighty-yearrun as rhetoric and is still going strong as cliche. It had a much shorter run as law. “Clear and present danger” was the dominant standard in free speech cases for only a decade. The phrase meant very different things to different Justices, 162 JOURNAL OF SUPREME COURT HISTORY and even very different things to the same Jus­ tices at slightly different points in time. And it never recovered from its debacle in Dennis v. United States.22 The remarkable true story of the clear and present danger test is well known to scholars in the field, but little known to theAmericanpeople or even to most lawyers. The best account ofthe origins and early years of the phrase is by my colleague David Rabban, in the final chapters of Free Speech in Its Forgotten Years.23 Perhaps the best accountofthe lateryears is by myteacher Harry Kalven in A Worthy Tradition.24 Fully persuadedby theirtelling ofthe basic story, I can add only a few interesting details, some observa­ tions aboutjudicial method, and (in sectionVI) a briefresponse to their principal critic. With re­ spect tojudicial method, I am struck by the irrel­ evance of constitutional text in the early cases, and by the relationship between the clear and present danger test and its successor, the com­ pelling interest test. I. Historical Context The phrase “clear and present danger” origi­ nates in some of the most fundamental of free speech cases, those growing out ofresistance to American policy in World War I. War is always an occasion for dissenting speech and a threat to the freedom ofthat speech. In World War I, cir­ cumstances combinedto produce an unusual de­ gree ofdissent and to make that dissent seem, to government officials, especially threatening. Even for a war, WorldWar I was awful. Tac­ tics failed to adapt to huge advances in the tech­ nology ofkilling, and a generation ofEuropeans died in the long stalemate in the trenches. Some blamed the arms merchants who sold the new technology. President Wilson said it was a war to makethe world safe fordemocracy, but...