Lowry (1937), when Justice Owen J. Roberts referenced it while rejecting the bad tendency test as a suitable approach for determining First Amendment rights. From 1940 through 1951, the Court decided 12 cases using the clear and present danger standard. These included eight criminal free speech cases and four civil freedom of expression cases.
The clear and present danger test was first used by Justice Oliver Wendell Holmes, Jr. in 1919 to determine whether an injunction should be issued against labor organizers who were interfering with interstate commerce. The case was Eberhart v. United States, wherein the court heard arguments from both sides regarding whether federal law prohibiting solicitation of employees on company property violated workers' right to organize.
Justice Holmes based his decision on the fact that there was a clear and present danger that would justify violating individuals' rights under the Constitution. He wrote: "We need not pause to consider whether every act which produces a probable result affecting foreign or domestic affairs is itself sufficient to constitute a cause under the general language of the Constitution. It is enough for our purpose to hold that there was evidence here of such a nature that the question was properly submitted to the jury." This statement set the standard for courts to use when evaluating actions that may violate individuals' rights under the Constitution.
The majority of the Supreme Court did not embrace the clear and present danger test until Herndon v. Lowry (1937), when Justice Owen J. Roberts used it while rejecting the evil tendency test as a suitable basis for determining First Amendment safeguards.
If the right criteria is followed, it is clear that there was no current risk of a forceful takeover of the government on the part of the admittedly tiny minority who shared the defendant's beliefs. This declaration, it is believed, was more than a theory; it was an exhortation.
In Schenck v. United States, Justice Oliver Wendell Holmes articulated the clear and present danger standard in 1919. The Supreme Court adopted the clear and present danger test as the primary criteria for assessing when speech is protected by the First Amendment early in the twentieth century. The test has been used by courts to determine whether speech is protected under other constitutional provisions as well.
In Schenk v. United States, the defendant was convicted of violating a law that prohibited the mailing of printed material that would "incite to crime". The printed matter in question was an article written by Holmes advocating violence against war protesters. The court held that this type of speech was not protected by the First Amendment because there was no reasonable likelihood that it would lead to acts of violence. Holmes based his conclusion on two factors: first, there was no evidence that anyone had been harmed by the speech, and second, even if some people were angered by the speech, this was not enough to constitute a threat to public safety.
The clear and present danger rule has been used by courts to determine whether speech is protected under the Free Speech Clause of the First Amendment, the Freedom of Assembly Clause of the First Amendment, the Due Process Clause of the Fifth Amendment, and the Equal Protection Clause of the Fourteenth Amendment.
The "bad tendency" test had its origins in early twentieth-century law. The roots of the test in the United States court system may be traced back to the United States Supreme Court cases United States ex rel. Turner v. Williams (1904) and Patterson v. Colorado (1905). (1907). In those cases, the high court ruled that convictions obtained through use of the coerced confession could not be used as evidence in trial. Coerced confessions were found to be unconstitutional by the Supreme Court until 1963, when it again refused to rule them invalid.
The bad tendency test remains in effect in some American courts. It allows evidence derived from an illegal search or seizure to be excluded from trial if it would have been suppressed under modern Fourth Amendment case law.
In India, the bad tendency test is known as the "silver thread theory". It says that even though something illegal has happened, it can be tolerated if it serves a useful purpose. For example, if evidence leads to the discovery of a hidden crime scene, then the silver thread theory allows for the admission of that evidence so long as no innocent person will be harmed if it is revealed.
The theory has been criticized for being an excuse to admit tainted evidence rather than a real legal doctrine. Also, it can be applied only in rare cases where there are no other ways to obtain evidence about the crime.
The Supreme Court created the famous "clear and present danger" standard in Schenck v. United States (1919) to decide whether a state might legitimately limit an individual's free speech rights under the First Amendment. The court held that even if what the plaintiff in that case said was true, he could not be punished for saying it because there was no way for him to know that what he said would lead to violence against which the government would need to act quickly enough to prevent harm from coming to others.
In later cases, the court continued to apply this standard in deciding whether other forms of speech may be prohibited or limited. For example, in Chaplinsky v. New Hampshire (1942), the court held that insulting words are punishable as criminal trespass when they are shouted at someone in a public place. In Cox v. Louisiana (1964), the court held that songs with violent lyrics can be prohibited by law enforcement officers who fear for the safety of the community. In Rauff v. Texas (1990), the court held that burning the American flag is protected speech under the First Amendment.
Burning flags is just one of many examples of how the "clear and present danger" standard has been used by courts to protect certain forms of speech that some people find distasteful.
In instances involving seditious libels, that is, critiques of the government, its officials, or its policies, the Court devised the test—and the evil tendency test, with which it is sometimes confounded or contrasted. It would be succeeded in the late 1960s by the impending lawless action test.
In cases involving threats to national security, the imminent threat test has replaced the clear and present danger test. The imminent threat test is more protective of First Amendment freedoms than the clear and present danger test but less protective than the official authority test.
The clear and present danger test was first articulated by the United States Supreme Court in Schenck v. United States. In that case, Charles Schenck and Ethelbert Hoge were convicted under the Smith Act for advocating the violent overthrow of the U.S. government. The defendants challenged their convictions on constitutional grounds, arguing that the statute violated their rights to free speech and to peaceably assemble because the acts they advocated were not likely to incite violence against the government.
The Court agreed that both activities constituted protected speech under the First Amendment and that therefore the convictions could not stand. But it also held that there are certain statements that can be considered crimes even though they are protected by the First Amendment. Such statements include declarations of war, attempts to overthrow the government, and speeches encouraging violence against officers or employees of the government.