Clear and Present Danger Test

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  • A test, in American law, that determines whether or not speech is protected under the constitutional First Amendment. The Supreme Court formulated the clear and present danger test in Schenck v. United States (1919) when it unanimously affirmed the lower court's decision to convict Charles Schenck on criminal charges under the Espionage Act of 1917. Mr. Schenck, secretary of the Socialist Party, had argued that he was protected under the First Amendment for his mailing of leaflets to 15,000 eligible servicemen, during World War I, urging draft dodging. Justice Oliver Wendell Holmes wrote in the Court's opinion that a

    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 ...

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