Clear and present danger - sustany/dvg GitHub Wiki

The clear and present danger test originated in�Schenck v. the United States.�The test says that the printed or spoken word may not be the subject of previous restraint or subsequent punishment unless its expression creates a clear and present danger of bringing about a substantial evil. It is a standard which is used to ascertain whether a particular speech is within the First Amendment right or not. See:�Schenck v. United States (1919)

Requirements:

The clear and present danger test features two independent conditions: first, the speech must impose a threat that a substantive evil might follow, and second, the threat is a real, imminent threat. The�court�had to identify and quantify both the nature of the threatened evil and the imminence of the perceived danger.

Scope of the test:

The rule has been applied�with very mixed results�in cases involving:�

Criminal�prosecutions�for opposition to war
Statutes�penalizing the advocacy of the overthrow of the government by force or violence
Attacks on courts or judges or�contempt�proceedings against lawyers
Picketing
Regulation of prison inmates' access to newspapers, periodicals, and so forth
Incitement to commit crimes
Breach of the peace or disorderly conduct

The "clear and present danger" rule has been held not applicable to cases involving:�

Antitrust laws
Libel cases
Statutes regulating the conduct of labor union affairs
Statutes governing the use of school property for non-school purposes
Demonstrations in an inappropriate place, such as before a courthouse

Application of the Test:

In�Brandenburg v. Ohio, the�defendant, a leader of a Ku Klux Klan, had arranged for a television station to cover his speech at a Klan rally. Ohio�s court ruled that the statement falls into the scope of clear and present danger.

In�Hess v. Indiana,�an anti-war demonstrator had been�arrested�for stating, �We'll take the fucking street later.� A�majority�of the Court�reversed�his�conviction. The�United States Supreme Court�ruled that the statement is not a �clear and present danger� because the statement does not impose an�imminent�danger to the society.