The test articulated in the Schenck v. United States case sets a precedent for the protection of free speech in the United States
This test was first articulated in Schenck v. United States, a seminal case involving the First Amendment rights of free speech. The test is as follows:
If free speech is to be regarded as the most basic of all civil liberties, it must be protected even if it offends against a commonly recognized law. The question then is whether a statute or ordinance imposes a substantial burden on that right and thus violates the First Amendment. You can get a better understanding of the test by reading an article by Christopher Tomlins entitled “The Public Good, The Public Harm & The First Amendment”, where he covers the history of this case and its impact on modern conceptions of freedom of speech.
Finally, another way to think about this test is through one of its many iterations:
If free speech is to be regarded as the most basic of all civil liberties, protection must be afforded even when it offends against a commonly recognized law. Indeed, if free speech were essentially a private affair to be left to private decision-making, there would be little point in having it at all. This principle was rarely contested before Schenck v. United States and was applied not only in Schenck but also in numerous other cases involving other federal laws regulating expression or conduct (such as child labor laws) and state laws prohibiting racial segregation (e.g., Plessy v. Ferguson). As such, I submit that this principle governs First Amendment protections against regulation of expression by government authority even when it directly targets protected expression regardless of where that expression originates.
This test can certainly be turned into something different than I’ve used it here — which is why I’m going to make my own modifications to make my own case for why it applies here:
Protected expression has always been subject to government regulation when that regulation directly targets protected expression regardless of where that expression originates. But under my interpretation — which rests on two separate principles — this protection extends not only to politically-oriented speech but also applies to speech directed at children (who should enjoy more protection than adults), ethnic groups (who are less likely than members of racial minorities), or religious groups (who are less likely than members of those groups).
To support these claims for broader protection for expressive activity aimed at particular social groups, I would point out three significant facts:
- Many statutes and ordinances expressly protect certain types or types of expressive activity from government interference
- Despite claims otherwise, even non-speech
The clear and present danger standard is a high threshold that must be met in order to restrict free speech
The clear and present danger test is a legal standard that is used to determine whether an individual or organization can be held liable for criminal behavior if it is responsible for the crime. It was first used to criminalize bomb threats in the United States. An individual cannot be held liable for bomb threats unless he or she actually caused, or knowingly aided and abetted, an attack upon property or persons.
The test is most often applied in cases of terrorism, which may include, but is not limited to:
- Bombing the homes of government officials (and other high-profile individuals)
- Bombing schools and colleges
- Bombing businesses owned by groups with which one disagrees politically (such as a Jewish supermarket)
- Terrorizing victims of natural disasters, such as earthquakes or floods
tThe test has been criticized by both sides in political debate: those who advocate it because terrorists are making threats against government officials, businesses and other innocent people; and those who oppose it because they cannot agree on what constitutes a clear and present danger. In this regard, the clear and present danger standard is also similar to the reasonable cause test discussed in my previous post on “reasonable cause” vs “clear and present danger”.
There are some differences: reasonable cause tests must be tested under all possible circumstances; the clear and present danger test requires only that the threat be “sufficiently immediate” with respect to harm being caused (which means you don’t have to make a threat if you do not believe it will come true). A reasonable cause case would require proof that if your threat were carried out it would have caused harm within a specified time period.
This may not be enough in certain circumstances where there is no specific time period required. The clear and present danger standard requires proof that you intended to make your threat known before someone else did so; this may not be sufficient in some cases where your threat was made against a specific person or entity. In these cases, there are arguments regarding whether or not one should have made a threat at all rather than waiting until someone else did something.
The clear and present danger standard also differs from reasonable cause because it recognizes that many crimes are committed by people who are emotionally unstable or mentally ill — ie., they do not act rationally but react randomly without regard for their consequences. Hence, the courts will often use the word “clearly disrupts peace” when discussing someone’s mental state.
Example of clear and present danger
Recently, I took a test to see whether I could think of a specific example of something that is obviously clear and present danger. The results were not what I expected.
For the purpose of this test, I’m going to use the word “clear” in its most general sense, as a part of speech — so that it can be used to mean “obvious” or “clearly” or “plainly apparent.” If you don’t know what the word “clearly” means, Google is your friend.
When you use this word you should have some idea what it means. When you can’t think of an obvious example, the answer is “not clear.”
The next one is a little more difficult: “present danger.” The word present means present to someone who has no way of knowing whether something is present danger or not as well as someone who knows there’s danger but doesn’t know whether it’s dangerous or just bad luck.
If you don’t know what “present danger” means, Google is your friend.
The fourth one is pretty simple: It refers to something that’s obvious and plain (so if it’s obvious to someone who isn’t too close, it’s plain). You don’t have to worry about getting an answer right (unless you’re trying for the question).
If you don’t get any answers right on these questions, Google can update your results at any time to make sure they’re accurate. It also allows you to see how many people got answers right on each question so that you can get an idea if people are cheating or not.
I’m going to give four examples because they demonstrate why these questions are hard and need more than four words:
- A car accident;
- A bullet passing through a person
- Someone trying to kill me
- Someone trying to kill me by jumping off a building