Editing Robert H. Jackson (section)

===="Clear and present danger" test====
{{Main|Clear and present danger}}
In 1919, the Supreme Court decided ''[[Schenck v. United States]]''.<ref>Schenck v. United States, 249 U.S. 47 (1919).</ref> In Schenck, the petitioners, members of the [[Socialist Party of America|Socialist Party]], were convicted of violating the [[Espionage Act of 1917]] for printing and distributing [[Flyer (pamphlet)|circulars]] asserting that American citizens had a right to oppose the draft during [[World War I]] because, among other things, it violated the United States Constitution.<ref>Schenck at 49–51.</ref> The ''Schenck'' decision promulgated the "clear and present danger test," which provided the standard for sustaining a conviction when speech is relied upon as evidence that an offense has been committed.<ref>''Dennis v. United States'', 341 U.S. 494, 505–507. see also, ''[[Brandenburg v. Ohio]]'', 395 U.S. 444, 447 (1969).</ref> Justice [[Oliver Wendell Holmes Jr.|Holmes]], writing for a unanimous court, affirmed the decision of the lower court positing:

<blockquote>We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done ... The question in every case is whether the words used are used in such circumstances, and are of such a nature as to create a "clear and present danger" that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.<ref>249 U.S. 47, 52.</ref></blockquote>