THE CLEAR AND PRESENT DANGER RULE, MEANING
The rule requires that before an utterance can be penalized by government it must, ordinarily, have occurred "in such circumstances or have been of such a nature as to create a clear and present danger" that it would bring about "substantive evils" within the power of government to prevent.[74] The question whether these conditions exist is one of law for the courts, and ultimately for the Supreme Court, in enforcement of the First and/or the Fourteenth Amendment;[75] and in exercise of its power of review in these premises the Court is entitled to review broadly findings of facts of lower courts, whether State or federal.[76]
CONTRASTING OPERATION OF THE COMMON LAW RULE
In Davis v. Beason,[77] decided in 1890, the question at issue was the constitutionality of a statute of the Territory of Idaho, providing that "no person who is a bigamist or polygamist, or who teaches, advices, counsels or encourages any person or persons to become bigamists or polygamists or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, counsels or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law, either as a rite or ceremony of such order, organization or association, or otherwise, is permitted to vote at any election, or to hold any position or office of honor, trust or profit within this Territory." A unanimous court held this enactment to be within the legislative powers which Congress had conferred on the Territory and not to be open to any constitutional objection. Said Justice Field for the Court: "Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man. Few crimes are more pernicious to the best interests of society and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counselling are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in all other cases."[78] No talk here about the necessity for showing that the prohibited teaching, counselling, advising, etc., must be shown to have occurred in circumstances creating a clear and present danger of its being followed.
In Fox v. Washington,[79] decided in 1915, the question at issue was the constitutionality of a Washington statute denouncing "the wilful printing, circulation, etc., of matter advocating or encouraging the commission of any crime or breach of the peace or which shall tend to encourage or advocate disrespect for law or any court or courts of justice." The State Supreme Court had assumed that the case was governed by the guarantees of the United States Constitution of freedom of speech, and especially by the Fourteenth Amendment, and its decision sustaining the statute was upheld by the Supreme Court on the same assumption, in the case of a person indicted for publishing an article encouraging and inciting what the jury had found to be a breach of State laws against indecent exposure. Again, one notes the total absence of any reference to the clear and present danger rule. But not all State enactments survived judicial review prior to the adoption of the clear and present danger test. In 1927 the Court disallowed a Kansas statute which, as interpreted by the highest State court, made punishable the joining of an organization teaching the inevitability of "the class struggle";[80] three years later it upset a California statute which forbade in all circumstances the carrying of a red flag as a symbol of opposition to government;[81] and 6 years after that it upset a conviction under an Oregon statute for participating in a meeting held under the auspices of an organization which was charged with advocating violence as a political method, although the meeting itself was orderly and did not advocate violence.[82] In none of these cases was the clear and present danger test mentioned.
EMERGENCE OF THE CLEAR AND PRESENT TEST
In Schenck v. United States[83] appellants had been convicted of conspiracy to violate the Espionage Act of June 15, 1917[84] "by causing and attempting to cause insubordination, etc., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendants willfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction." Affirming the conviction, the Court, speaking by Justice Holmes said: "It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado.[85] * * * We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. * * * The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that have all the effect of force. * * * 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. It is a question of proximity and degree."[86] One week later two other convictions under the same act were affirmed, with Justice Holmes again speaking for the unanimous Court. In Frohwerk v. United States[87] he said: "With regard to the argument [on the constitutional question] we think it necessary to add to what has been said in Schenck v. United States, * * *, only that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U.S. 275, 281. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech."[88] In Debs v. United States[89] he referred to "the natural and intended effect" and "probable effect"[90] of the condemned speech (straight common law). When, moreover, a case arose in which the dictum in the Schenck case might have influenced the result, the Court, seven Justices to two, declined to follow it. This was in Abrams v. United States,[91] in which the Court affirmed a conviction for spreading propaganda "obviously intended to provoke and to encourage resistance to the United States in the war." Justices Holmes and Brandeis dissented on the ground that the utterances did not create a clear and imminent danger[92] of substantive evils. And the same result was reached in Schaefer v. United States,[93] again over the dissent of Justices Holmes and Brandeis, the Court saying that: "The tendency of the articles and their efficacy were enough for the offense * * *."[94]
Gitlow was convicted under a New York statute making it criminal to advocate, advise or teach the duty, necessity or propriety of overturning organized government by force or violence.[95] Since there was no evidence as to the effect resulting from the circulation of the manifesto for which he was convicted and no contention that it created any immediate threat to the security of the State, the Court was obliged to reach a clear cut choice between the common law test of dangerous tendency and the clear and present danger test. It adopted the former and sustained the conviction, saying "By enacting the present statute the state has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence, and unlawful means, are so inimical to the general welfare, and involve such danger of substantive evil, that they may be penalized in the exercise of its police power. That determination must be given great weight * * * That utterances inciting to the overthrow of organized government by unlawful means present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the state. They threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less and substantial because the effect of a given utterance cannot be accurately foreseen. The state cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale."[96] Justice Sanford distinguished the Schenck Case by asserting that its "general statement" was intended to apply only to cases where the statute "merely prohibits certain acts involving the danger of substantive evil without any reference to language itself,"[97] and has no application "where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character."[98]
Two years later, in Whitney v. California,[99] upon evidence which tended to establish the existence of a conspiracy to commit certain serious crimes, the conviction was sustained unanimously. In a concurring opinion in which Justice Holmes joined, Justice Brandeis restated the test of clear and present danger to include the intent to create such danger: "But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral. That the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent has been settled. See Schenck v. United States, 249 U.S. 47, 52. * * *, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."[100]