What is the grave and probable danger test?

Answer 1

The "grave and probable danger" test (also called "clear and probable danger") was a modification of the "clear and present danger" test first established in Schenck v. US, (1919). In Dennis v. US, (1951), the US Supreme Court upheld the criminal convictions of Communist Party leaders found guilty of violating the Alien Registration Act of 1940 (aka Smith Act) for conspiring to recruit and train groups of citizens who would advocate and teach the violent overthrow of US government.

The petitioners challenged the constitutionality of the §§ 2 and 3 of the Smith Act on the grounds that it infringed their First Amendment right to free speech.

Part of the contested Smith Act reads:

"(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government;"

"(2) with intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence;"

"(3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof."

The Court held the Smith Act to be constitutional because the government could be changed by peaceful and legal means, and had a right to protect itself from the forces of a revolution. The government's interest created a valid exception to the Free Speech clause because its intent was not to restrict academic discussions of revolution, but to prevent incitement to revolution.

The Court did not address the petitioners' (defendants') conviction because they were found guilty of conspiracy, but the question before the court dealt with free speech. ("Did the Smith Act's restrictions on speech violate the First Amendment?")

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, the Court 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.

Neither the words "grave and probable danger" nor "clear and probable danger" are explicitly written in the opinion of the Court or in the concurring and dissenting opinions, but were derived later as shorthand for the Judge hand's hybridization of Holmes' test. The substitution of "probable danger" for "present danger" is intended to allow the US tighter vigilance over words and acts it considered threatening to the integrity of the government. It is important to note, however, that "grave and probable danger" is a more restrictive modification Holmes' "clear and present danger," test, not a complete departure from the original standard.

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)