CRS Annotated Constitution

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The Adoption of Clear and Present Danger.—The Court did not invariably affirm convictions during this period in cases[p.1039]like those under consideration. In Fiske v. Kansas,89 it held that a criminal syndicalism law had been invalidly applied to convict one against whom the only evidence was the “class struggle” language of the constitution of the organization to which he belonged. A conviction for violating a “red flag” law was voided as the statute was found unconstitutionally vague.90 Neither case mentioned clear and present danger. An “incitement” test seemed to underlie the opinion in De Jonge v. Oregon,91 upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization which was said to advocate violence as a political method, although the meeting was orderly and no violence was advocated during it. In Herndon v. Lowry,92 the Court narrowly rejected the contention that the standard of guilt could be made the “dangerous tendency” of one’s words, and indicated that the power of a State to abridge speech “even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.”

Finally, in Thornhill v. Alabama,93 a state anti–picketing law was invalidated because “no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter.” During the same term, the Court reversed the breach of the peace conviction of a Jehovah’s Witness who had played an inflammatory phonograph record to persons on the street, the Court discerning no clear and present danger of disorder.94

The stormiest fact situation faced by the Court in applying clear and present danger occurred in Terminiello v. City of Chicago,95 in which a five–to–four majority struck down a conviction obtained after the judge instructed the jury that a breach of the peace could be committed by speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” “A function of free speech under our system of government,” wrote Justice Douglas for the majority, “is to invite dispute.[p.1040]It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”96 The dissenters focused on the disorders which had actually occurred as a result of Terminiello’s speech, Justice Jackson saying: “Rioting is a substantive evil, which I take it no one will deny that the State and the City have the right and the duty to prevent and punish . . . . In this case the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate.”97 The Jackson position was soon adopted in Feiner v. New York,98 in which Chief Justice Vinson said that “[t]he findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner’s deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.”

Contempt of Court and Clear and Present Danger.—The period during which clear and present danger was the standard by which to determine the constitutionality of governmental suppression of or punishment for expression was a brief one, extending roughly from Thornhill to Dennis.99 But in one area it was vigorously, though not without dispute, applied to enlarge freedom of utterance and it is in this area that it remains viable. In early contempt–of–court cases in which criticism of courts had been punished as contempt, the Court generally took the position that even if freedom of speech and press was protected against governmental abridgment, a publication tending to obstruct the administration of justice was punishable, irrespective of its truth.100 But in Bridges v. California,101 in which contempt citations had been brought against a newspaper and a labor leader for statements made about pending judicial proceedings, Justice Black for a five–to–four Court[p.1041]majority began with application of clear and present danger, which he interpreted to require that “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.”102 He noted that the “substantive evil here sought to be averted . . . appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice.” The likelihood that the court will suffer damage to its reputation or standing in the community was not, Justice Black continued, a “substantive evil” which would justify punishment of expression.103 The other evil, “disorderly and unfair administration of justice,” “is more plausibly associated with restricting publications which touch upon pending litigation.” But the “degree of likelihood” of the evil being accomplished was not “sufficient to justify summary punishment.”104 In dissent, Justice Frankfurter accepted the application of clear and present danger, but he interpreted it as meaning no more than a “reasonable tendency” test. “Comment however forthright is one thing. Intimidation with respect to specific matters still in judicial suspense, quite another. . . . A publication intended to teach the judge a lesson, or to vent spleen, or to discredit him, or to influence him in his future conduct, would not justify exercise of the contempt power. . . . It must refer to a matter under consideration and constitute in effect a threat to its impartial disposition. It must be calculated to create an atmospheric pressure incompatible with rational, impartial adjudication. But to interfere with justice it need not succeed. As with other offenses, the state should be able to proscribe attempts that fail because of the danger that attempts may succeed.”105

A unanimous Court next struck down the contempt conviction arising out of newspaper criticism of judicial action already taken, although one case was pending after a second indictment. Specifically alluding to clear and present danger, while seeming to regard it as stringent a test as Justice Black had in the prior case, Justice Reed wrote that the danger sought to be averted, a “threat to the impartial and orderly administration of justice,” “has not the clearness and immediacy necessary to close the door of permissible public comment.”106 Divided again, the Court a year later set aside contempt convictions based on publication, while a motion for a[p.1042]new trial was pending, of inaccurate and unfair accounts and an editorial concerning the trial of a civil case. “The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, and not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.”107

In Wood v. Georgia,108 the Court again divided, applying clear and present danger to upset the contempt conviction of a sheriff who had been cited for criticizing the recommendation of a county court that a grand jury look into African American bloc voting, vote buying, and other alleged election irregularities. No showing had been made, said Chief Justice Warren, of “a substantive evil actually designed to impede the course of justice.” The case presented no situation in which someone was on trial, there was no judicial proceeding pending that might be prejudiced, and the dispute was more political than judicial.109 A unanimous Court recently seems to have applied the standard to set aside a contempt conviction of a defendant who, arguing his own case, alleged before the jury that the trial judge by his bias had prejudiced his trial and that he was a political prisoner. Though the defendant’s remarks may have been disrespectful of the court, the Supreme Court noted that “[t]here is no indication . . . that petitioner’s statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding” and quoted its previous language about the imminence of the threat necessary to constitute contempt.110

Clear and Present Danger Revised: Dennis.—In Dennis v. United States,111 the Court sustained the constitutionality of the Smith Act,112 which proscribed advocacy of the overthrow by force and violence of the government of the United States, and upheld[p.1043]convictions under it. Dennis’ importance here is in the rewriting of the clear and present danger test. For a plurality of four, Chief Justice Vinson acknowledged that the Court had in recent years relied on the Holmes–Brandeis formulation of clear and present danger without actually overruling the older cases that had rejected the test; but while clear and present danger was the proper constitutional test, that “shorthand phrase should [not] be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case.” It was a relative concept. Many of the cases in which it had 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.”113 Here, in contrast, “[o]verthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech.”114 And in combating that threat, the Government need not wait to act until the putsch is about to be executed and the plans are set for action. “If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.”115 Therefore, what does the phrase “clear and present danger” import for judgment? “Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: ‘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.’ 183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.”116 The “gravity of the evil, discounted by its improbability” was found to justify the convictions.117


89 274 U.S. 380 (1927) .
90 Stromberg v. California, 283 U.S. 359 (1931) .
91 299 U.S. 353 (1937) . See id. at 364–65.
92 301 U.S. 242, 258 (1937) . At another point, clear and present danger was alluded to without any definite indication it was the standard. Id. at 261.
93 310 U.S. 88, 105 (1940) . The Court admitted that the picketing did result in economic injury to the employer, but found such injury “neither so serious nor so imminent” as to justify restriction. The role of clear and present danger was not to play a future role in the labor picketing cases.
94 Cantwell v. Connecticut, 310 U.S. 296, 308 (1940) .
95 337 U.S. 1 (1949) .
96 Id. at 4–5.
97 Id. at 25–26.
98 340 U.S. 315, 321 (1951) .
99 Thornhill v. Alabama, 310 U.S. 88 (1940) ; Dennis v. United States, 341 U.S. 494 (1951) .
100 Patterson v. Colorado, 205 U.S. 454 (1907) ; Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918) .
101 314 U.S. 252 (1941) .
102 Id. at 263.
103 Id. at 270–71.
104 Id. at 271–78.
105 Id. at 291. Joining Justice Frankfurter in dissent were Chief Justice Stone and Justices Roberts and Byrnes.
106 Pennekampt v. Florida, 328 U.S. 331, 336, 350 (1946) . To Justice Frankfurter, the decisive consideration was whether the judge or jury is, or presently will be, pondering a decision that comment seeks to affect. Id. at 369.
107 Craig v. Harney, 331 U.S. 367, 376 (1947) . Dissenting with Chief Justice Vinson, Justice Frankfurter said: “We cannot say that the Texas Court could not properly find that these newspapers asked of the judge, and instigated powerful sections of the community to ask of the judge, that which no one has any business to ask of a judge, except the parties and their counsel in open court, namely, that he should decide one way rather than another.” Id. at 390. Justice Jackson also dissented. Id. at 394. See also Landmark Communications v. Virginia, 435 U.S. 829, 844 (1978) ; Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562– 63 (1976).
108 370 U.S. 375 (1962) .
109 Id. at 383–85, 386–90. Dissenting, Justices Harlan and Clark thought that the charges made by the defendant could well have influenced the grand jurors in their deliberations and that the fact that laymen rather than judicial officers were subject to influence should call forth a less stringent test than when the latter were the object of comment. Id. at 395.
110 In re Little, 404 U.S. 553, 555 (1972) . The language from Craig v. Harney, 331 U.S. 367, 376 (1947) , is quoted supra, text accompanying n.13.
111 341 U.S. 494 (1951) .
112 Ch. 439, 54 Stat. 670 (1940), 18 U.S.C. Sec. 2385 .
113 Dennis v. United States, 341 U.S. 494, 508 (1951) .
114 Id. at 509.
115 Id. at 508, 509.
116 Id. at 510. Justice Frankfurter, concurring, adopted a balancing test, id. at 517, discussed infra, pp. 1023–28. Justice Jackson appeared to proceed on a conspiracy approach rather than one depending on advocacy. Id. at 561. Justices Black and 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.
117 In Yates v. United States, 354 U.S. 298 (1957) , the Court substantially limited both the Smith Act and the Dennis case by interpreting the 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. Of Dennis, Justice Harlan wrote: “The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to ‘action for the accomplishment’ of forcible overthrow, to violence as ‘a rule or principle of action,’ and employing ‘language of incitement,’ id. at 511–12, is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur.” Id. at 321.
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