the clear and present danger test was replaced in may 1950.
when was the clear and present danger test replaced?
may 1950
in may 1950, one month before the appeals court heard oral arguments in the "dennis v. united states" case, the supreme court ruled on free speech issues in "american communications association v. douds". in that case, the court considered the clear and present danger test, but rejected it as too mechanical and instead introduced a balancing test. the federal appeals court heard oral arguments in the cpusa case on june 21–23, 1950. judge learned hand considered the clear and present danger test, but his opinion adopted a balancing approach similar to that suggested in "american communications association v. douds".
clear and present danger
antiwar protests during world war i gave rise to several important free speech cases related to sedition and inciting violence. in the 1919 case "schenck v. united states", the supreme court held that an antiwar activist did not have a first amendment right to advocate draft resistance. in his majority opinion, justice oliver wendell holmes, jr. introduced the clear and present danger test, which would become an important concept in first amendment law; but the "schenck" decision did not formally adopt the test. holmes later wrote that he intended the clear and present danger test to refine, not replace, the bad tendency test. although sometimes mentioned in subsequent rulings, the clear and present danger test was never endorsed by the supreme court as a test to be used by lower courts when evaluating the constitutionality of legislation that regulated speech.
clear and present danger