Clear and Present Danger Test

Definition of Clear and Present Danger Test

Note: See a more comprehensive approach to the Clear and Present Danger Test legal concept in the American Law Encyclopedia

One of the standards used to determine if a particular expression is protected by the First Amendment. The clear and present danger test was first articulated in Schenck v. United States (249 U.S. 47: 1919), a case involving an Espionage Act prosecution for obstruction of military recruitment. The Supreme Court upheld Schenck's conviction, saying that expression is a conditional freedom that must be evaluated in a situational context. It was in Schenck that Justice Oliver W. Holmes said in explaining this test that the freedom of speech could not be interpreted in such a way as to allow a person to shout “Fire!” in a crowded theater. Rather, each situation must be reviewed to determine whether expression occurs in such a way and is of “such nature as to create a clear and present danger that it will bring about the substantive evil that legislatures are empowered to prevent.” If speech is linked closely enough to illegal acts, the speech may be restricted. The Court said it was a matter of “proximity and degree.” See also Balancing Doctrine (Law of the United States) Preferred Position Doctrine (Law of the United States).

Resources