Schenck V. United States - Subsequent Jurisprudence

Subsequent Jurisprudence

The "clear and present danger" test was later weakened when the less restrictive "bad tendency" test was adopted in Whitney v. California (1927). Justices Holmes and Brandeis shied from this test, but concurred with the final result. Some contend that the "clear and present danger" test was originally just a re-phrasing of the "bad tendency" test. After the repression following the Red Scare, and general disillusion with the war, Holmes sought to prop up free speech with the "clear and present danger" test, a standard intended to clarify and narrow the circumstances in which speech could be restricted. This view has merit considering Holmes never referred to "clear and present danger" in the companion cases of Frohwerk v. United States and Debs v. United States.

Both of these cases were later narrowed by Brandenburg v. Ohio (1969), which replaced the "bad tendency" test with the "imminent lawless action" test.