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Schenck v. United States – The Birth of “Clear & Present Danger”

Schenck v. United States – The Birth of “Clear & Present Danger”. The (constitutional) test: Whether the words used are in such circumstances and of such a nature that they create a clear & present danger that they will bring about the evil Congress trying to protect against.

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Schenck v. United States – The Birth of “Clear & Present Danger”

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  1. Schenck v. United States – The Birth of “Clear & Present Danger” • The (constitutional) test: • Whether the words used are in such circumstances and of such a nature that they create a clear & present danger that they will bring about the evil Congress trying to protect against. • Is this test any different from the bad tendency test used by the lower courts? • What did the D’s do? How does Holmes find intent to create a clear and present danger in Schenck? • What do Frohwerk and Debs suggest about whether c&pd is different from bad tendency? • Frohwerk - “a little breath would be enough to kindle a flame” • Debs – can punish speech if “probable effect” is to interfere w/ war effort

  2. Circumstances and Speech - Holmes’s “Fire” Analogy in Schenck • “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” • What in this example makes the speech so obviously unprotected? Would it be different if the shout were true? If it were a false shout were in an open field? • Does the analogy help to determine whether to punish Schenck’sspeech?

  3. Speech and Wartime • Holmes intimates that wartime circumstances justify harsher punishment of speech than peacetime circumstances – is he right?

  4. Holmes’s dissent in Abrams v. United States • Holmes’s version of clear and present danger: • Only the present danger of immediate evil or an intent to bring it about warrants Congress in setting a limit to the expression of opinion. • How is this test different from Schenck? • Why does the change in the test matter?

  5. Holmes, Truth & The Marketplace of Ideas • Holmes “marketplace of ideas” theory in Abrams: • “The ultimate good desired is better reached by free trade in ideas. . . . The best test of truth is the power of the thought to get itself accepted in the competition of the market.” • Are there problems with Holmes’s approach to truth-seeking or his version of truth? • Does this passage support reliance on a “clear and present danger test” to regulate speech?

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