Clear and present danger is a test first established in the landmark case of Schenck v. United States. It came about at a conflux of interest between national security in a time of war and the ever-present constitutionally supported rights of free speech. However, as time has passed its original war time application has expanded, retracted and ultimately been refined to reflect a greater understanding of the government’s role in the regulation of free speech and its responsibilities with regard to national security.
In the 1919 case Schenck v. United States the United Sates Supreme Court stated that an anti-war activist (Schenck) didn’t have a First Amendment right to advocate for the resistance of the draft, or at the very least not in …show more content…
Writing on behalf of the majority opinion, Justice Oliver Wendell Holmes first introduced the clear and present danger test, which addressed the concept of when is it permissible for the nation to restrict its citizen’s freedom of speech. However the Schenck case never formally adopted the test, but merely introduced it as a refinement of earlier legal thinking/ doctrines.
With regard to the pros and cons of the preceding case in which Justice Holmes established the aforementioned test, concerning the ability of the government to regulate speech against the draft during World War I, Holmes himself stated "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.” Meaning in effect that the baseline pros of using a doctrine like that of clear and present danger is the protection of the public and the government itself from the threat represented by certain mediums of expression or explicit content that represents harm or potential harm. “It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace …show more content…
Presenting an anti-war speech protesting the United States involvement in World War I, Debs was arrested under the Espionage act of 1917 and ultimately convicted, for openly protesting against the war. The State’s case against Debs was founded on a document written by Debs called the Anti-War Proclamation and Program, apparently illustrating that Debs' original intent was in fact to openly protest US involvement in WWI. The Federal Government’s position was that he had been attempting to instigate treason by inhibiting the drafting of soldiers during wartime, something that the espionage act had expressly forbidden. Ultimately his case is one of three cases decided in 1919 (the others being Shenck and Abrams), where the Supreme Court upheld decisions that restricted