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Justice Oliver Wendell Holmes, Jr., articulated the "clear and present danger test" in the unanimous opinion for the US Supreme Court's landmark decision in Schenck v. United States, (1919). [This case is also the source of Holmes' famous quote about the First Amendment not protecting a person "shouting fire in a crowded theater."]
The test set a standard for determining reasonable restrictions on the First Amendment right to free speech based on whether the speech, written or spoken, constituted a "clear and present danger."
In this case, the danger (printed pamphlets discouraging new draftees from enlisting) 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 has been used as a test in many cases through the years.
The criteria for what constitutes unprotected speech was subsequently narrowed in other cases, most recently Bradenburg v. Ohio, 395 US 444 (1969) when the Court upheld the First Amendment rights of the Ku Klux Klan. The standard established under Bradenburg is "imminent lawless action," meaning the First Amendment exercise has to be severe enough that it's likely to incite immediate violence or other unlawful behavior.
Case Citation:
Schenck v. United States, 249 U.S. 47 (1919)
For more information, see Related Questions, below.
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What was the effect of the decision on Schenck v United states?
This court case upheld the government's right to limit or restrict your rights during a wartime. These rights include those such as freedom of speech and freedom of the press. This also established the "clear and present danger" test. So if the US is in a wartime, it can be deemed that certain individuals' actions like talking badly about the government is dangerous to the wartime effort. Hope this helps!
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What is the test used in corrections to justify restricting rights of prisoners?
Clear and Present Danger
What was the importance of Schenk vs US?
The "Clear and Present Danger" test good luck on study island.
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.
What was the effect of the Supreme Court decision described in this headline?
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What was established in Schenk v. US?
The clear and present danger test was established in Schenck.Facts: Schenck, a member of the Socialist Party, made leaflets opposed to the draftand violated the Espionage Act of 1917.Decision: The First Amendment does not protect the right to free speech when the nature or circumstances are such that the speech creates a clear and present danger of substantial harm to important national interests.sources: law class
What is the bad tendency test?
The bad tendency test is a test derived from English Common law. It asks whether the words spoken have a "tendency to bring about evil consequences" rather than asking whether the words bring about "an immediate substantive evil", which is what the clear and present danger test asks.
What are examples of clear and present danger?
In Schenck v. United States, (1917), the case that established the clear and present danger test, the defendants' convictions were upheld because they were printing and distributing pamphlets designed to discourage drafted soldiers from fighting in World War I. The Court held the "clear and present danger" in this case was interfering with the federal government's recruiting effort during a time of war.Another example mentioned was creating a panic by "shouting fire in a crowded theater," because the threat to the public outweighed the right to free speech.This might be similar to shouting "Sale on XBox360!" in a crowded store.Encouraging people to riot, particularly if the people seemed likely to act on the encouragement would represent a clear and present danger.Case Citation:Schenck v. United States, 249 US 47 (1919)
Clear and present danger rule?
The clear and present danger rule states that a clear and present danger must be shown in order to prohibit a citizen's First Amendment rights. The rule was established in 1919 when used in the majority opinion by U.S. Supreme Court Justice Oliver Wendell Holmes, Jr for the case Schenck vs. United States.
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How could the clear and present danger test be restricted?
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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What does Clear and Present Danger mean?
Clear and Present Danger: Saying things that by themselves may not seem dangerous, but when combined with circumstances create danger.For Example: yelling "bomb" when you're on a crowded airplane, up in the air. People would over-react according to their setting.The phrase refers to the legal test established in the US Supreme Court case Schenck v. United States, 249 US 47 (1919), that attempted to determine appropriate limitations on First Amendment protection of free speech.For more information, see Related Questions, below.
