Justice Oliver Wendell Holmes’s dissent in United States v. Abrams gave us the “marketplace of ideas” metaphor and the “clear and present danger” test. Too often unremarked is the contradiction between the two. At the same time that Holmes says “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” he also says that “the present danger of immediate evil” permits Congress to restrict the expression of opinion. When the anticipated harm comes about through acceptance of the speaker’s idea, then the imposition of the clear and present danger test stops the operation of the marketplace of ideas. The market is not free if the clear and present danger test intervenes right when an idea gains traction.

If the marketplace of ideas and the clear and present danger test are in tension with each other, either one of them could be identified as the problem. The marketplace of ideas has received a great deal of criticism, but mostly about various forms of market failure. Less common is a rejection of the basic idea that, as human beings and subjects of the state, individuals have a strong interest in receiving information so that they may make their own decisions about what constitutes a good life and what constitutes good policy. Whether a completely unregulated speech market actually provides adequate information is another matter, but the basic claim to information is commonly accepted. If it remains so, then the clear and present danger test is an intervention that overrides this claim to information in some contexts. As such, it requires some justification.

For many years, the clear and present danger test received its share of criticism. Recently, however, few have focused on its difficulties. This is, perhaps, because technically speaking it is no longer a current doctrinal standard, having been superseded in the context of incitement and subversive advocacy by the test set forth in Brandenburg v. Ohio (and perhaps, with some uncertainty as to their remaining force, cases such as Yates v. United States, Scales v. United States, and Noto v. United States). Yet the clear and present danger test is still with us. It is the shaping force behind Brandenburg and the dominant popular articulation of when incendiary or objectionable speech loses its protection. It informs state laws on unlawful assembly and breach of the peace. Also, when courts encounter speech for which the Supreme Court has not developed a clearly articulated standard, they often fall back on the principles of clear and present danger or Brandenburg, whether they make sense in the given area or not.

If the clear and present danger test still exerts force, it also still carries the mysteries it has had since the beginning. The most frequent criticisms are that it is hard to apply and easy to manipulate. But problems in application are only the last of several along the line from conceptualizing to implementing the standard. In many ways, it raises as many questions as it answers. This Article addresses some of these questions.



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