SCOTUS on "A Clear and Present Danger"
"Clear and Present Danger–Its Meaning and Significance" is an iconic law review article written in 1950 which gives excellent definitions of what both "clear" and "present" mean, based on SC arguments. It also warns against limiting Constitutional freedoms based on "future fears":
Clear danger
What is a "clear" danger? Although it "cannot be completely captured in a formula,"' it means at least that there must exist "reasonable ground to fear that serious evil will result." '
Present danger
When is there a "present" danger? The Court has answered synonymously: when the peril is "imminent," 2
"immediate, ) "impending," 14 c"urgent," '" or "not remote." 6 In Bridges v. California, Mr. Justice Black, speaking for the Court, emphasized that "the degree of imminence [must be] extremely high before utterances can be punished." Elsewhere he has indicated that the danger must be "pressingly imminent."
Future danger
if there is time for the rational democratic processes f thought and discussion, there is no present danger. As
so understood and applied, the clear and present danger test can make a significant contribution to the delimitation of constitutional freedoms.
Freedom cannot be abridged if it is only the fear of future evils that haunts the official.
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=3802&context=ndlr
————
This last line on future evils is especially important because it has implications for the 2nd Amendment, and for
gun control,
especially red flag laws.
https://www.usatoday.com/story/news/nation/2019/05/01/red-flag-laws-temporarily-take-away-guns/3521491002/
https://www.cato.org/publications/policy-analysis/costs-consequences-gun-control
But the clear and present danger standard is also applicable to
abridging freedom of speech
–as we know from our experience on this board:
Justice Oliver Wendell Holmes defined the clear and present danger test in 1919 in Schenck v. United States, offering more latitude to Congress for restricting speech in times of war, saying that when words 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….no court could regard them as protected by any constitutional right."…
In contrast to the clear and present danger test, the bad tendency test proposes no distinction based upon circumstances. The Supreme Court observed in Gitlow, “Freedom of speech and press . . . does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties” (italics added). The bad tendency test protects only innocuous speech; it criminalizes all seditious libels. [BUT THIS WAS REJECTED - SEE BELOW]
The clear and present danger test was not accepted by a majority of the Supreme Court until Herndon v. Lowry (1937), when Justice Owen J. Roberts invoked it while rejecting the bad tendency test as an appropriate standard for identifying the protections of the First Amendment.
https://www.mtsu.edu/first-amendment/article/898/clear-and-present-danger-test
————
Dems want to essentially revive the "bad tendency" test and to restrict both freedom of speech and the right to bear arms based on the POSSIBILITY of future behavior in the future.
https://www.nytimes.com/2020/02/09/us/politics/qanon-trump-conspiracy-theory.html
CAPP included (''if it posts!'')