Amendment 1 — Incitement Movement From Clear And Present Danger Test

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In Gitlow v. New York,[1](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn1amd1 " 268 U.S. 652 (1925). ") a conviction for distributing a manifesto in violation of a law making it criminal to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or violence, the Court affirmed in the absence of any evidence regarding the effect of the distribution and in the absence of any contention that it created any immediate threat to the security of the state. In so doing, the Court distinguished the “clear and present danger” test used in Schenck: Schenck governed “cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself, and it is sought to apply its provisions to language used by the defendant for the purpose of bringing about the prohibited results.” [2](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn2amd1 " Id. at 670–71. ") By contrast, in Gitlow, the Court observed that “the legislative body itself ha[d] previously determined the danger of substantive evil arising from utterances of a specified character.” [3](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn3amd1 " 268 U.S. at 671. ") Thus, a state legislative determination “that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power” was almost conclusive to the Court.[4](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn4amd1 " 268 U.S. at 668. Justice Oliver Wendell Holmes dissented. “If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant’s views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” Id. at 673. ")

In Whitney v. California,[5](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn5amd1 " 274 U.S. 357, 371 (1927), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969). ") the Court affirmed a conviction under a criminal syndicalism statute based on the defendant’s association with and membership in an organization that advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves “danger to the public peace and the security of the State” was entitled to almost conclusive weight. In a technical concurrence on procedural grounds, which in fact disagreed with the substance of the majority opinion, Justice Louis Brandeis restated the “clear and present danger” test, saying “even advocacy of violation [of the law] . . . is not a justification for denying free speech where the advocacy fails short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. . . . In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.” [6](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn6amd1 " 274 U.S. at 376. ")

In Dennis v. United States,[7](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn7amd1 " 341 U.S. 494 (1951). ") the Court sustained the constitutionality of the Smith Act,[8](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn8amd1 " 54 Stat. 670 (1940), 18 U.S.C. § 2385. ") which proscribed advocacy of the overthrow by force and violence of the government of the United States, and upheld convictions under it. The plurality opinion in Dennis recognized that Whitney and Gitlow had largely been superseded by Schenck, and applied a revised version of the clear and present danger test to conclude that the evil sought to be prevented was serious enough to justify suppression of speech.[9](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn9amd1 " Dennis, 341 U.S. at 507–09, 517. ") The plurality said the phrase “clear and present danger” should not “be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case.” [10](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn10amd1 " Id. at 508. ") Many of the cases in which it had previously been used to reverse convictions had turned “on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech.” [11](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn11amd1 " 341 U.S. at 508. ")

By contrast, in Dennis, the plurality reasoned that “[o]verthrow of the government by force and violence is certainly a substantial enough interest for the government to limit speech.” [12](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn12amd1 " 341 U.S. at 509. ") Further, the plurality said the government did not need to wait to act until the plan was set in action.[13](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn13amd1 " 341 U.S. at 508, 509. ") The Court adopted a flexible version of the “clear and present danger” test: “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.” [14](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn14amd1 " 341 U.S. at 510 (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950). Justice Felix Frankfurter, concurring, adopted a balancing test. Id. at 517. Justice Robert Jackson appeared to proceed on a conspiracy approach rather than one depending on advocacy. Id. at 561. Justices Hugo Black and William O. Douglas dissented, reasserting clear and present danger as the standard. Id. at 579, 581. Note the recurrence to the Learned Hand formulation in Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976), although the Court appeared in fact to apply balancing. ") The “requisite danger” of a conspiracy was found to justify the convictions.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn15amd1 " Dennis, 341 U.S. at 510–11. In Yates v. United States, 354 U.S. 298 (1957), the Court discussed its constitutional jurisprudence while interpreting the Smith Act to require advocacy of unlawful action, to require the urging of doing something now or in the future, rather than merely advocacy of forcible overthrow as an abstract doctrine, and by finding the evidence lacking to prove the former. ")

The clear and present danger test was a lighter restriction on governmental power after Dennis, and it virtually disappeared from the Court’s language over the next twenty years.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn16amd1 " Cf. Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1, 8 (1965). See Garner v. Louisiana, 368 U.S. 157, 185–207 (1961) (Harlan, J., concurring). ") Its replacement for part of this period was the much disputed “balancing” test, which made its appearance the year before Dennis in American Communications Ass’n v. Douds.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn17amd1 " 339 U.S. 382 (1950). See also Osman v. Douds, 339 U.S. 846 (1950). Balancing language was used by Justice Hugo Black in his opinion for the Court in Martin v. City of Struthers, 319 U.S. 141, 143 (1943), but it seems not to have influenced the decision. Similarly, in Schneider v. Irvington, 308 U.S. 147, 161–62 (1939), Justice Owen Roberts used balancing language that he apparently did not apply. ") There the Court sustained a law barring the National Labor Relations Board from investigating a labor union’s petition if any of its officers failed to file annually an oath disclaiming membership in the Communist Party and belief in the violent overthrow of the government.[18](https://www.law.cornell.edu/constitution-conan/amendment-1/incitement-movement-from-clear-and-present-danger-test#fn18amd1 " The law, § 9(h) of the Taft-Hartley Act, 61 Stat. 146 (1947), was repealed, 73 Stat. 525 (1959), and replaced by a section making it a criminal offense for any person “who is or has been a member of the Communist Party” during the preceding five years to serve as an officer or employee of any union. § 504, 73 Stat. 536 (1959); 29 U.S.C. § 504 . It was held unconstitutional in United States v. Brown, 381 U.S. 437 (1965). ") Chief Justice Fred Vinson, for the Court, rejected reliance on the clear and present danger test because the government’s interest in the law was “not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom if free speech is practiced.” [19](https://www.law.cornell