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The “Clear and Present Danger” Definition and Its Application to Internet Speech

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In its own words, “clear and present Danger” is the standard that is applied when evaluating the constitutionality of a law. The phrase first came into use with the decision in Print Shop v. City of San Francisco (ordering that publication of a controversial magazine was banned). The reason for the inclusion of this phrase in the First Amendment was to protect the press from prior restraint. The majority in that case, however, held that the ban on publishing the magazine violates the right of free speech guaranteed in the first amendment. In cases such as that, the phrase “clear and present Danger” was used to describe a situation where there was a reasonable likelihood that harm would result from the publications in question.

In today’s context, the phrase is employed to describe the subjective reasonableness of a particular law. For instance, if a state police officer arrests you for disorderly conduct, does this trumps your right to freedom of speech or press? Well, the answer is “no”. You are most likely being arrested for violation of a statute that makes it illegal to be disorderly in the state of Illinois.

However, this is not always the same in every state – Generally, school administrators and local law enforcement officials will ban political ads or political speech that references current elections. Because there are some instances where the lines between protected speech and unprotected speech become blurred, the courts have been more willing to distinguish the lines so that lower courts have been able to order certain content-based restrictions on expressive activity in school settings. This is why the Illinois State Police has sought and received an injunction against two Chicago school districts in recent years.

In those cases – the court ordered the schools to remove all political advertisements from the classroom. In essence, the school administrators had requested a political endorsement before placing it in the classroom, which is forbidden by the First Amendment. The First Amendment was designed to protect freedom of speech on the basis that the government cannot limit people’s free speech based on their viewpoints, beliefs, or associations. When a publisher wants to advertise a book about the Boston Tea Party, or a movie about the Japanese Attack on Pearl Harbor, does that publisher have to say that those things are true? No! The publishers can choose the topic of their advertisements, but not what they say about those subjects – except in the case of truthful advertising, as mentioned above.

This is why the clear and present danger standard is so important – It tells us when a publisher can choose which topics are protected and which are not, and it gives us an indication of how much support a publisher can get from the educational system in the face of challenge to its content. Without the standard of review, it would be very hard for a publisher to make a case that their publication was not potentially dangerous, simply because the court did not know whether or not it was.

So, the clear and present danger standard is crucial in our society – because without it we could have a myriad of different opinions and beliefs, and the only reason that some groups or individuals would be allowed to say anything at all would be if those opinions and beliefs were clearly wrong. That’s not the America that we want, is it? And that is the problem with much of modern society, because most of it is built on a foundation of lies and misrepresentations. Without the protection of the clear and present danger standard, we have an extremely dangerous culture.

If you have been threatened or attacked for your belief, or if you have been accused of doing something you didn’t do, you should see your legal attorney immediately.

Jonathan D. Keeler

I'm Jonathan, a Harvard Law graduate with over 15 years in the legal field. From international treaties to the digital complexities of cyber law, my passion is deciphering the intricate tapestry of jurisprudence and making it accessible to all. When not analyzing legal precedents, you'll find me immersed in legal thrillers or advocating for digital rights. Interests: International diplomacy, cyber security, legal literature.

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Jonathan D. Keeler

I’m Jonathan, a Harvard Law graduate with over 15 years in the legal field. From international treaties to the digital complexities of cyber law, my passion is deciphering the intricate tapestry of jurisprudence and making it accessible to all. When not analyzing legal precedents, you’ll find me immersed in legal thrillers or advocating for digital rights. Interests: International diplomacy, cyber security, legal literature.

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