In 1919 Oliver Wendell Holmes was the first to coin the term in the majority opinion for the case schenck v.The United States involving an appeal of the general secretary of the American Socialist Party, who had been convicted for distributing 15,000 leaflets to young men of draft age critical of the war effort and, especially, the draft. The leaflet urged readers to “Assert your rights–Do not submit to intimidation.” (exsploring Constitutional Conflicts)
“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 the United States Congress has a right to prevent.”
As it read from Holmes speech. Later the term became a metaphor for the First Amendment. (Wikipedia)
To put into a clearer prospective Holmes explained the point by arguing that no one has a constitutional right to shout “Fire!” in a crowded theater when no fire is present, for such action would pose a “clear and present danger” to public safety. (Answers.com)
Following Schenck v. United States case, “clear and present danger” became a standard test in cases where a United States law limits a citizen’s First Amendment rights; the law is found to be constitutional if it can be shown that the language it prohibits is language that poses a “clear and present danger”. However, it should said the “clear and present danger” criterion of the Schenck decision was later modified by Brandenburg v. Ohio, and the test refined to determining whether the speech would provoke an imminent lawless action. (Answers.com)
Today the term lives on in current debate over Iraq and if it is clear and present danger to the United States. Where this term has be mentioned on average 600 times in the debate. (Eastland) To deiced if the term has not been mutated to apply to it’s new standard is hard to say. What is clear is that chairs seemed to favor the term and the test. Who is qualified to judge the test results is another paper.
Works Cited
Answers.com. 6 May 2008 <http://www.answers.com/topic/clear-and-present-danger?cat=biz-fin>.
exsploring Constitutional Conflicts. 6 May 2008 <http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/clear&pdanger.htm>.
Wikipedia. Wikipedia. 1 April 2008. 7 may 2008 <http://en.wikipedia.org/wiki/Clear_and_present_danger>.
