The Adoption of Clear and Present Danger.

The Court did not invariably affirm convictions during this period in cases like those under consideration. In Fiske v. Kansas,475 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 because the statute was found unconstitutionally vague.476 Neither case mentioned clear and present danger. An “incitement” test seemed to underlie the opinion in DeJonge v. Oregon,477 upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization that 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,478 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,479 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.480

The stormiest fact situation the Court faced in applying the clear and present danger test occurred in Terminiello v. City of Chicago,481 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. 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.”482 The dissenters focused on the disorders that 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.”483 The Jackson position was soon adopted in Feiner v. New York,484 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.”

Footnotes

475
274 U.S. 380 (1927). [Back to text]
476
Stromberg v. California, 283 U.S. 359 (1931). [Back to text]
477
299 U.S. 353 (1937). See id. at 364–65. [Back to text]
478
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. [Back to text]
479
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 doctrine of clear and present danger was not to play a future role in the labor picketing cases. [Back to text]
480
Cantwell v. Connecticut, 310 U.S. 296, 308 (1940). [Back to text]
481
337 U.S. 1 (1949). [Back to text]
482
337 U.S. at 4–5. [Back to text]
483
337 U.S. at 25–26. [Back to text]
484
340 U.S. 315, 321 (1951). [Back to text]