Editing Clear and present danger (section)

==Importance==
Following ''[[Schenck v. United States]]'', "clear and present danger" became both a public metaphor for [[First Amendment to the United States Constitution|First Amendment]] speech<ref name="Derrick2007">{{cite journal |last=Derrick |first=Geoffrey J. |title=Why the Judiciary Should Protect First Amendment Political Speech During Wartime: The Case for Deliberative Democracy |journal=Lethbridge Undergraduate Research Journal |volume=2 |issue=1 |year=2007 |url=http://www.lurj.org/article.php/vol2n1/firstamend.xml |issn=1718-8482 |url-status=dead |archive-url=https://web.archive.org/web/20080422191505/http://www.lurj.org/article.php/vol2n1/firstamend.xml |archive-date=2008-04-22 }}</ref><ref>{{Cite journal |last=Tsai |first=Robert L. |title=Fire, Metaphor, and Constitutional Myth-Making |journal=Georgetown Law Journal |volume=93 |pages=181–239 |year=2004 |issn=0016-8092 }}</ref> and a standard test in cases before the Court where a United States law limits a citizen's First Amendment rights; the law is deemed to be [[constitutional]] if it can be shown that the language it prohibits poses a "clear and present danger".  However, the "clear and present danger" criterion of the ''Schenck'' decision was replaced in 1969 by ''[[Brandenburg v. Ohio]]'',<ref>Brandenburg v. Ohio, {{ussc|395|444|1969}}.</ref> and the test refined to determining whether the speech would provoke an "[[imminent lawless action]]".

The vast majority{{Who|date=May 2017}} of legal scholars have concluded that in writing the ''Schenck'' opinion, Justice Holmes never meant to replace the "[[bad tendency (legal)|bad tendency]]" test which had been established in the 1868 English case ''[[Hicklin test|R. v. Hicklin]]'' and incorporated into American jurisprudence in the 1904 Supreme Court case ''[[John Turner (anarchist)|U.S. ex rel. Turner v. Williams]]''.<ref>{{cite web|url=https://caselaw.findlaw.com/us-supreme-court/194/279.html|title=FindLaw's United States Supreme Court case and opinions}}</ref> This is demonstrated by the use of the word "tendency" in ''Schenck'' itself, a paragraph in ''Schenck'' explaining that the success of speech in causing the actual harm was not a prerequisite for conviction, and use of the bad-tendency test in the simultaneous ''[[Frohwerk v. United States]]'' and ''[[Debs v. United States]]'' decisions (both of which cite ''Schenck'' without using the words "clear and present danger").

However, a subsequent essay by [[Zechariah Chafee]] titled "Freedom of Speech in War Time" argued despite context that Holmes had intended to substitute clear and present danger for the bad-tendency standard a more protective standard of free speech.<ref name="Chafee1919">{{cite journal |last=Chafee |first=Zechariah |year=1919 |title=Freedom of Speech in Wartime |journal=Harvard Law Review |volume=32 |issue= 8|pages=932&ndash;973 |doi=10.2307/1327107 |jstor=1327107 }}</ref>  Bad tendency was a far more ambiguous standard where speech could be punished even in the absence of identifiable danger, and as such was strongly opposed by the fledgling [[American Civil Liberties Union]] and other libertarians of the time.

Having read Chafee's article, Holmes decided to retroactively reinterpret what he had meant by "clear and present danger" and accepted Chafee's characterization of the new test in his dissent in ''[[Abrams v. United States]]'' just six months after ''Schenck''.<ref>''Abrams v. United States'', {{ussc|250|616|1919}}.</ref> ''Schenck'', ''Frohwerk'', and ''Debs'' all resulted in unanimous decisions, while ''Abrams'' did not.

===Brandenburg===

For two decades after the ''Dennis'' decision, free speech issues related to advocacy of violence were decided using balancing tests such as the one initially articulated in ''Dennis''.<ref>Including cases such as  ''Konigsberg v. State Bar of California'', 366 U.S. 36 (1961).<br/>Killian, pp 1101&ndash;1103.</ref>  In 1969, the court established stronger protections for speech in the landmark case ''[[Brandenburg v. Ohio]]'',  which held that  "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action".<ref>''Brandenburg v. Ohio'', 395 U.S. 444 (1969).</ref><ref>Redish pp 104&ndash;106.<br/>Killian, pp 1109&ndash;1110.</ref>  ''Brandenburg'' is now the standard applied by the Court to  free speech issues related to advocacy of violence.<ref>E.g. in cases such as ''Hess v. Indiana'', 414 U.S. 105 (1973).<br/>Redish, p 105.<br/>Kemper, p 653.</ref>