Table of Contents
Introduction
The clear and present danger test is a doctrine that was introduced in the US with the aim of enhancing the freedom of speech. It was announced first by the US Supreme court in Schenck v. United States in 1919. During this time the US was going through a period of controversy where by the government's interests often clashed with the First Amendment in the maintaining of morale, law and order during the time of war. Different formulations have been used in other supreme courts over the years.
All other human freedoms are null and void if there is no freedom to speech. Many jurists in the American law history appreciate that the most precious freedom to the Americans is the first amendment but unfortunately only a few have had the guts to come out and air their views on the free speech clause doctrine, which in reality is a constitutional embarrassment, it can not be satisfactorily achieved. This test has been used in one form or the other to determine what type of speech the government should legitimately restrain for many years. This however has been injurious to the American core values. One may see it to be expansive, but in essence it protects too little speech (Clear and Present Danger par 3)
The passage of the espionage act of 1917 created three new federal offenses.
The first one was that it was an offense for anyone to create or pass on false reports or statements with the intention of interfering with the military efforts or helping the American enemies. Causing or trying to cause insubordination, mutiny disloyalty or refusal of duty in the armed forces was the second offense. And obstruction of the draft was the third offense. What this meant was that it was a federal crime for any one criticizing government policy during the period of war. This later saw the judging of Masses publishing Co. v. pattern for publishing information that violated the provisions of the espionage act. Two years later after the creation of the espionage act, the Supreme Court's decision in Schenck v. United States case saw Justice Holmes affirm Schenck's conviction formulating the clear and present danger test. He argued that there comes a time when speech can bring about an act which may be punishable. That saying is equivalent to doing. After this, Justice Holmes affirmed many other convictions, for instance the publisher of the Missouri Staats Zeitung was convicted for conspiring to violate the espionage act. The newspaper had declared the involvement of US in World War 1 a mistake, saying that the draft was illegal (Dow & Shields Par 8).
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The other way in which the espionage act was applied was through the bad-tendency approach, where speech is taken to be an act, which is subject to punishment if it causes ill effects. Another one was the incitement approach where persons were convicted for incitement. But with all these, the CPD test still poses a dilemma on whether those expressing opposition to democracy have a right of expressing it even if it posses danger of destroying the democratic state. This essentially shows that the judges' point is only founded on fear. But still questions might be asked as to how much fear calls for silencing the speaker? Rationalized paranoia on the government's side should not be used to deny citizens their rights. Borrowing from the Athenians, when facing the same dilemma, they saw that the freedom of threatening speech posed little danger than the effects of suppressing such speech. This does not mean that they allowed people total freedom of speech, no; they in fact imposed monetary fines to libel. They had a well structured democracy in which, as Aristotle observed, "all citizens deliberate about all matters." As opposed to the views of the CPD architects, they saw that free expression, be it threatening, was good for a democratic state. This might have seemed an exaggeration but not as bad as the CPD test's exaggerations of the dangers of free speech to democracy (The Clear and Present Danger Test par 5; Lidsky, and Wright 20).
Efforts in trying to preserve the freedom of individuals to criticize and at the same time giving the state the power to punish have failed. This was seen when Judge Hand tried to draw a distinction advocacy and incitement in Masses publishing company. This is because advocacy and incitement depends on the listener but not the person speaking. This only kills the moral distinction between saying and doing something. Speech in itself is protected by the first amendment; if people react lawlessly by hearing certain speech, then power is vested in the state to punish them for their actions, but not the speaker to whom they have reacted. The law should punish the act not the cause of the act because in doing so, the law will be contradicting with the free speech clause that says that "Congress shall make no law ...... abridging the freedom of speech...." (Constitutional conflicts par 5)
Conclusion
The clear and present danger test that limits one's freedom of speech goes against the provisions of the first amendment, which is ethically based solidly on the foundation that differentiates word and deed.
Without will one can not act just because he has listened to a speech. Listeners have their own will to choose to act or not to act. This exercising of the will is what should be punishable, but not the rhetoric, the cause of their actions, the speaker.