clear and present danger

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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)


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.

See also: Brandenburg Test

[Last updated in August of 2022 by the Wex Definitions Team]