As
a law student I was introduced to this criterion by my professors,
when asking which political speech is protected and which not. “Clear
and present danger” test is used for that. If, for example, I give a
speech against the government this is protected, however if this
speech clearly incites a lawless action, advocating use of force,
then it is illegal.
Most
law professors will go as far as to this point. They will not
elaborate on this criterion. Its history however is exciting. The
test was introduced by Justice Holmes in 1919 in Schenck vs U.S.
Schenck came in front of the Supreme Court claiming protection under
the 1st Amendment. He printed leaflets against the
government peacefully suggesting a change, using tough language.
According to the court clear and present danger existed and Schenck
was not protected under freedom of expression. The test was proven to
be a trap in practice. When people needed the protection of 1st
Amendment, Justices equated words with acts against the government
and refused the protection.
In
1969 the criterion changed: all advocacy is protected, except for
that directed explicitly to producing, and likely to produce,
imminent lawless action.
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