Final answer:
The clear and present danger test established in Schenck v. United States has problems such as subjectivity in what constitutes a clear threat, potential for governmental overreach, and the suppression of protected speech. Over time, the Supreme Court has refined its approach, recognizing the importance of distinguishing between actual threats and mere criticism of the government.
Step-by-step explanation:
There are several problems associated with the clear and present danger test, which was historically used to determine if certain forms of speech could be limited under the First Amendment. This legal doctrine was established during the case of Schenck v. United States, where Supreme Court Justice Oliver Wendell Holmes characterized certain forms of public dissent during wartime as being similar to shouting "fire" in a crowded theater, thereby posing a significant threat to public safety.
One problem with this test is the challenge of defining what constitutes a clear and imminent threat. The threshold for what is considered clear and present can be somewhat subjective and open to interpretation, which may result in inconsistencies in its application. Another issue is the potential for misuse or overreach by authorities, which might lead to the suppression of speech that is critical of the government but does not necessarily pose a true danger.
Furthermore, this test might lead to the encroachment of protected speech. For instance, during wartime, speech that is merely critical of the government's policies could be unfairly characterized as presenting a clear and present danger to national security. The Supreme Court now tends to favor a more precise approach to assessing speech limitations, distinguishing between abstract critique and explicit incitements of violence.
An illustration of these concerns is the controversy surrounding laws like Senate Bill 1070 in Arizona, which granted authorities broad powers to demand immigration papers from individuals suspected of being unlawfully present. Critics argue that such laws can result in racial profiling and undermine the civil liberties of minority groups, drawing a parallel to the potential overreach in applying the clear and present danger test.