The “clear and present danger” test is a legal concept that was developed to decide when the government can constitutionally limit someone’s freedom of speech. The test was created to give the government the ability to prevent speech that poses a serious risk to public safety and order.
The test involves determining whether expression of a certain type, in a given context, creates a “clear and present danger” of serious evil or injury. The “clear and present danger” must be direct, immediate, and likely.
The test was first articulated by Justice Oliver Wendell Holmes in the Supreme Court case Schenck v. United States (1919). In this case, Holmes wrote: “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.”
Modern Examples of ‘Clear and Present Danger’
The most relevant example of “clear and present danger” in modern times is the coronavirus pandemic. The virus is a serious and direct threat to public health and safety, and authorities all over the world have enacted drastic measures to prevent its spread.
Another recent example concerns cyberattacks. Governments have been increasingly vocal about the dangers of cyberattacks, warning that malicious actors can access citizens’ data or disable critical infrastructure systems.
Conclusion
The clear and present danger test is an important legal concept that is used to regulate speech and protect public safety. It allows the government to take action when a speech poses a significant risk to public order and safety. Examples of this risk can be seen in modern events such as the coronavirus pandemic and cyberattacks.