Home > West's Encyclopedia of American Law > Clear and Present Danger

An early standard by which the constitutionality of laws regulating subversive expression were evaluated in light of the First Amendment's guarantee of FREEDOM OF SPEECH.

Justice OLIVER WENDELL HOLMES JR., writing for the U.S. Supreme Court in SCHENCK V. UNITED STATES, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919), 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 Congress has a right to prevent."

The famous free speech standard proved easier to formulate than to apply, when less than a year after first articulating it in Schenck, Holmes dissented from a majority opinion that invoked the...