71. The Birth of “Clear and Present Danger”
How Holmes and Hand drew the first lines between speech and action
Every modern free-speech case traces its lineage to a single moment in 1919, when Justice Holmes introduced the phrase “clear and present danger.” It was meant to replace vague fears of sedition with a rule that could distinguish protected ideas from punishable acts. But as the ink dried on Schenck v. United States, it was clear that Holmes’s new formula would raise as many questions as it answered.
The First Amendment had never before been tested in wartime. When Charles Schenck mailed thousands of leaflets urging men to resist the draft, the government charged him under the Espionage Act of 1917, a statute criminalizing interference with military recruitment. Formally, the Court was interpreting the Act, asking what “obstructing” the draft meant. But the question could not be answered without deciding how far Congress could constitutionally go in punishing speech. Holmes’s “clear and present danger” test tried to reconcile those two levels of analysis: the statute’s reach and the Constitution’s limits. Speech could be punished, he wrote, only when it created a clear and immediate danger of bringing about a substantive evil that Congress had the power to prevent. His image of “falsely shouting fire in a theatre” captured the intuition that words could cause harm as real as action.
Yet in practice, Schenck looked much like the old law of sedition it sought to replace. The Court upheld Schenck’s conviction even though his pamphlets urged only peaceful protest. Within months, Holmes repeated the pattern in Frohwerk and Debs, affirming convictions of antiwar writers and speakers whose words had merely a “natural tendency” to cause disloyalty. Despite its new name, “clear and present danger” operated as “bad tendency” by another label, allowing punishment of speech that might, someday, encourage illegal acts. Wartime fear made the danger feel perpetually clear and always present.
The older “bad tendency” rule came from English common law on sedition: speech could be punished if it merely tended to undermine authority or provoke unrest, even if no harm occurred. Holmes wanted to move beyond that tradition, to require something more immediate and concrete. But his early opinions blurred the line between advocacy and incitement. As Judge Learned Hand warned, once the test becomes “a matter of degree,” judges and juries will always find the danger grave enough. “The jig is up,” Hand wrote, meaning, discretion had swallowed principle.
Hand had already tried to solve the problem two years earlier in Masses Publishing Co. v. Patten (1917), a case involving a socialist magazine denied postal access for criticizing the war. He proposed a simpler rule: only direct incitement to illegal acts —(explicit words urging others to break the law) could be punished. Everything short of that was protected. “If one stops short of urging upon others that it is their duty or their interest to resist the law,” Hand wrote, “it seems to me one should not be held to have attempted to cause its violation.” His approach focused on what the speaker said, not what listeners might do. It offered a bright line rooted in language rather than fear.
Hand’s decision was swiftly overturned, and The Masses was silenced. But his insight endured: that deference to speculation about danger gives government—and juries—too much power over dissent. Holmes would come to see the truth of that warning later that same year, in his dissent in Abrams v. United States. There, he reinterpreted his own test, insisting that only “a present danger of immediate evil” could justify punishment, and introducing the “marketplace of ideas” metaphor that became the heartbeat of modern free-speech theory.
The evolution from Schenck to Abrams marked a profound shift: from fear of disorder to faith in discourse. The “clear and present danger” test, tightened by Holmes and expanded by Brandeis, eventually gave way to the Brandenburg v. Ohio standard in 1969, requiring both intent to incite and likelihood of imminent lawless action. Hand’s formalism and Holmes’s consequentialism finally converged: speech could be punished only when words became weapons, not merely when ideas became unpopular.
The enduring lesson of 1919 was that democracy cannot survive by silencing what it fears. It survives by trusting that truth, in open competition, is the stronger force.