What is the clear and probable danger test?

The "clear and probable danger" test (also called the "grave and probable danger" test); modified the "clear and present danger" test established in Schenck v. US (1919) by holding the identified threat (in this case the Communist Party's literature and plans to teach groups how to overthrow the US government by violence) need not be imminent, but may be judged by the probability that the speech would incite someone to violence in the future.

Clear and Present Danger

Clear and present danger refers to the legal test established in the US Supreme Court case Schenck v. United States, (1919), used to determine appropriate limitations on the First Amendment protection of free speech.

Charles Schenck, general secretary of the American Socialist Party was arrested and convicted for sending 15,000 anti-draft circulars through the mail to men scheduled to enter the military service. The circular called the draft law a violation of the 13th Amendment's prohibition of slavery. It went on to urge draftees not to "submit to intimidation," but to "petition for repeal" of the draft law.

In this case, the danger was determined to be a risk to the United States' recruitment and conscription efforts during WW I, and in violation of the new 1917 Espionage Act; however, the concept was used as a test in many cases through the years. The clear and present danger doctrine has been superseded by less restrictive First Amendment limitations. The current test was established in Bradenburg v. Ohio, (1969), and requires the exercise of free speech to be such that it would probably incite "imminent lawless action" (an immediate or nearly immediate act of violence or other unlawful activity).

Case Citation:

Schenck v. United States, 249 US 47 (1919)

Clear and Probable Danger (aka Grave and Probable Danger)

The "grave and probable danger" test arose from the case of Dennis v. US, (1951), in which a number of Communist Party members were arrested for conspiracy under the Smith Act [1940].

In their appeal to the US Supreme Court, the petitioners (defendants) challenged the constitutionality of the Smith Act on First Amendment grounds, claiming it violated their right to free speech. The Court held the government had a right to take reasonable action to protect itself, and that right included restricting free speech under certain circumstances.

In reviewing the use of the "clear and present danger" test in cases occurring between 1919 (when the test was created) and 1951 (when Dennis was heard), the majority of the court majority concluded that punishment of speech is justified when a substantial interest is at stake, even if no imminent danger exists.

In general, they accepted the definition of "clear and present danger" as Second Circuit Judge Learned Hand explained it:

"In each case, [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."

The court reasoned the Communist party's advocacy of overthrowing the government by violence may create a threat to the federal government at some undetermined point, an idea that echoed the earlier "bad tendency" rule, which allowed a lower threshold of probability than the "present danger" criterion, which sought to link cause and effect more directly. The result of Dennis was to tip the scale more toward protecting government interest and national security than the population's free speech.

Zacharia Chafee, considered the leading legal scholar on the First Amendment, whose books on the subject both criticized and influenced the courts, lamented that "The First Amendment now means that Congress shall make no law abridging the freedom of speech and the press unless Congress does make a law abridging the freedom of speech and of the press."

The United States fear of Communism during the cold war and McCarthy era resulted in tighter restriction of civil liberties.

Case Citation:

Dennis v. United States, 341 U.S. 494 (1951)