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The clear and present danger test established in Schenck v. US, (1919) has been restricted; in fact, it is no longer the standard for creating exceptions to the protection of free speech. The present test, derived from the opinion of Bradenburg v. Ohio, (1969), "imminent lawless action," allows greater latitude for free speech and sets a higher bar for judging "danger."
In Bradenburg (also called the Ku Klux Klan case), the Supreme Court overturned a lower court decision preventing the Klan from obtaining a parade permit to march through a town. The per curiam (unsigned) opinion held:
"Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Case Citations:
Clear and Present Danger: Schenck v. United States, 249 US 47 (1919)
Imminent Lawless Action: Bradenburg v. United States, 395 US 444 (1969)
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Which power is given to Congress by the and clear and present danger rule?
The power to prevent harmful speech against the government
The first and most famous test for determining when the government could intervene to suppress political speech was called?
The first and most famous test for determining when the government could intervene to suppress political speech was called the clear and present danger test. The controversy over suspicionless drug tests at school and in the workplace pits the government's war to privacy from unwarranted searches.
Is the the phrase clear and present danger in the US Constitution?
No. "Clear and present danger" is a test derived from Justice Oliver Wendell Holmes, Jr's opinion in the Supreme Court case Schenck v. US, (1919), that first set legal restrictions on the exercise of First Amendment free speech, depending on the content and context of the speech. "Clear and present danger," refers to judging whether a particular use of free speech created an obvious dangerous danger to people or the government, and therefore was not protect speech but could be punished by the courts or censored.Case Citation:Schenck v. United States, 249 US 47 (1919)
What does the term clear and present danger have to do with censorship?
"Clear and present danger" is a test derived from Justice Oliver Wendell Holmes, Jr's opinion in the Supreme Court case Schenck v. US, (1919), that first set established legal exceptions to, or restrictions on, the exercise of First Amendment free speech depending on the content and context of the speech. In other words, "clear and present danger" was the standard used to determine whether free speech could be censored or punished.Holmes' simplest analogy involves "shouting fire in a crowded theater," an activity that (in the absence of fire), could put people in danger and lead to injuries. Holmes asserted the First Amendment was never intended to protect that kind of free speech.In Schenck v. US, the Supreme Court upheld the 1917 Espionage Act as constitutional and affirmed the convictions of Charles Schenck and Elizabeth Baer for distributing anti-war pamphlets that encouraged conscripted soldiers to resist the draft and refuse to fight in World War I. The Court held their speech wasn't protected because it threatened to interfere with military recruiting.Case Citation:Schenck v. United States, 249 US 47 (1919)
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