The clear-and-present-danger test is a constitutional law rule that permits the government to restrict freedom of speech and press in order to prevent immediate and significant harm to protected interests. Justice Oliver Wendell Holmes established this rule in 1919, which empowers the government to intervene if someone’s words or actions have the potential to cause serious harm. To enforce this restriction, the government must demonstrate that the harm is either currently occurring or highly probable in the near future.
The clear-and-present-danger test is a principle in constitutional law that permits the government to limit the freedoms of speech and press guaranteed by the First Amendment if it is necessary to prevent immediate and severe harm to interests that the government is authorized to protect. This test was established by Justice Oliver Wendell Holmes in the 1919 case of Schenck v. United States. For instance, if someone is delivering a speech that promotes violence or illegal activity, the government may restrict that speech if it poses a clear and present danger to public safety. However, if the speech is simply expressing an opinion or advocating for a political position, it is protected by the First Amendment. The clear-and-present-danger test focuses on distinguishing protected advocacy from unprotected incitement of violent or illegal behaviour. The key question in each case is whether the words used, in the circumstances and nature in which they are used, create a clear and present danger of bringing about the harmful consequences that Congress has the right to prevent.
The Clear-and-Present-Danger Test is a legal standard used to determine whether speech or expression can be restricted by the government. It originated from a Supreme Court case and requires that the speech in question poses a clear and present danger of causing harm that the government has a right to prevent.
The Clear-and-Present-Danger Test is more stringent than other tests, such as the “imminent lawless action” test. It requires a higher level of proof that the speech or expression in question poses an immediate and serious threat to public safety or national security.
Under the Clear-and-Present-Danger Test, speech that incites violence, promotes terrorism, or poses a direct threat to national security can be restricted by the government. However, the restrictions must be narrowly tailored and necessary to protect a compelling government interest.
Political speech can be restricted under the Clear-and-Present-Danger Test if it poses a clear and present danger of inciting violence or causing harm. However, the government must show that the restriction is necessary to protect a compelling government interest and that there are no less restrictive alternatives available.
Hate speech can be restricted under the Clear-and-Present-Danger Test if it poses a clear and present danger of inciting violence or causing harm. However, the government must show that the restriction is necessary to protect a compelling government interest and that there are no less restrictive alternatives available.
Religious speech can be restricted under the Clear-and-Present-Danger Test if it poses a clear and present danger of inciting violence or causing harm. However, the government must show that the restriction is necessary to protect a compelling government interest and that there are no less restrictive alternatives available.
The Clear-and-Present-Danger Test applies to online speech in the same way it applies to offline speech. If online speech poses a clear and present danger of inciting violence or causing harm, it can be restricted by the government. However, the restrictions must be narrowly tailored and necessary to protect a compelling government interest.
Artistic expression can be restricted under the Clear-and-Present-Danger Test if it poses a clear and present danger of inciting violence or causing harm. However, the government must show that the restriction is necessary to protect a compelling government interest and that there are no less restrictive alternatives available.
The Clear-and-Present-Danger Test applies to public protests or demonstrations in the same way it applies to other forms of speech. If the protest or demonstration poses a clear and present danger of inciting violence or causing harm, it can be restricted by the government. However, the restrictions must be narrowly tailored and necessary to protect a compelling government interest.
Academic freedom can be restricted under the Clear-and-Present-Danger Test if the speech or expression in an academic setting poses a clear and present danger of inciting violence or causing harm. However, the government must show that the restriction is necessary to protect a compelling government interest and that there are no less restrictive alternatives available.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 17th April 2024.
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