The Clear and Present Danger Test
- Justice Holmes developed nuances of "clear and present danger test" in series of cases following World War I
- In Abrams v. United States, Holmes wrote that the government should not apply "clear and present danger test" too broadly
- In Gitlow v. New York, Holmes argued that revolutionary words should be protected if there was no real danger of imminent revolution
This was certainly not the sort of opinion that Homes would have written in 1860. Before the war he had aligned himself with the most unbending faction within the abolitionist movement—with Wendell Phillips, Theodore Parker, and John Brown—men who believed that ideals should never be compromised, that rights were absolute, and that truth had been inscribed into nature by God. But now Holmes argued that rights were neither absolute nor rooted in abstract philosophical constructs like natural law. Instead, they were defined by society and must be balanced by the needs of the society that created them. The role of the Court was not to defend some timeless standard, but to administer a test that maintained a balance between socially defined rights and social needs.
The majority on the Court apparently accepted at least part of Holmes's pragmatism. But other justices did not embrace some of the nuances within the test Holmes was trying to establish. In fact, Holmes had to flesh out the full meaning of the "clear and present danger test" within dissents that he wrote on subsequent First Amendment cases.
Eight months after delivering the majority opinion in Schenck, Holmes wrote a dissenting opinion in Abrams v. United States. Abrams was convicted under the Sedition Act for publishing pamphlets criticizing the war, and like Schenck he challenged the constitutionality of the speech-restricting law. The majority of the Court affirmed his conviction, and they cited Holmes's clear and present danger test in their decision. But Holmes warned that the Court needed to be more careful and discriminating in applying this test. While Congress could legitimately set limits on permissible speech, especially during times of war, it "certainly cannot forbid all effort to change the mind of the country." Moreover, every piece of political criticism did not rise to the level of clear and present danger. "Nobody can suppose that the surreptitious publishing of a silly pamphlet by an unknown man . . . would present any immediate danger . . . or have any appreciable tendency to do so."43
Holmes continued to work out the subtleties within his clear and present danger test in Gitlow v. New York. When the Court upheld the conviction of Benjamin Gitlow in a New York court for criminal anarchy, Homes dissented again. Justice Sanford's majority opinion rejected Holmes's position that ideas and words needed to be evaluated in their specific context. Instead, Sanford argued that revolutionary words "by their very nature" presented a danger to the security of the public and the State. And Sanford embraced the bad tendency test, rather than Holmes's more subtle clear and present danger test, in arguing that "a single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration."44
In a dissenting opinion Holmes suggested that this sort of apocalyptic speculation was silly. Benjamin Gitlow was no Karl Marx; Gitlow's manifesto had no significant audience, and consequently, "there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views." Moreover, Holmes continued, the challenge before the Court was to balance society's needs with the rights society provided. And speech was one of those rights deemed essential to free society. He conceded that Gitlow's tract "was an incitement," but "every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it." Placing more Jeffersonian-like confidence in the public's judgment than did Sanford, Holmes argued that Gitlow's pamphlet "had no chance of starting a present conflagration." But reflecting his own, war-hardened skepticism regarding ideals and absolute truths, he closed more pragmatically than Jefferson ever would have: if Gitlow's ideas about a proletarian dictatorship become "accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way."45