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Restricting Dangerous Speech
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“Words . . . may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger.”
—Justice Oliver Wendell Holmes, Schenck v. United States, March 1919
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Justice Oliver Wendell Holmes made this statement in the case of Schenck v. United States in March 1919. The case involved a challenge to the constitutionality of the Espionage Act of 1917, which made it a crime to obstruct military recruitment or encourage insubordination in the armed forces during World War I. Charles Schenck, the defendant in the case, had distributed leaflets encouraging resistance to the draft.
In his opinion, Justice Holmes introduced the concept of the "clear and present danger" test to determine the limits of free speech. He argued that certain forms of speech could be restricted if they presented a clear and present danger to the nation's security or public safety. According to Holmes, when words are used in such circumstances, they may become subject to prohibition.
The "clear and present danger" test has since been refined and modified by subsequent Supreme Court cases. It is not an absolute standard, and the Court has recognized other tests and standards to assess the constitutionality of restrictions on speech. Nonetheless, Holmes' words in the Schenck case have had a lasting impact on the interpretation of free speech rights in the United States.