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  • Vshrupt Modi


Vshrupt Modi  

NMIMS Kirit P. Mehta School of Law – Mumbai 


This article investigates the development of the Clear and Present Danger Doctrine a key principle for comprehending the boundaries of freedom of speech and expression as practiced in the US. The approach was first conceptualized by Justice Oliver Wendell Holmes Jr., who used it in his 1919 judgement in the Schenck vs. United States case as a tool for balancing the interests between the individual and the government’s obligation for preserving public This doctrine underwent remarkable changes during time as reflected by the landmark case of Brandenburg v. Ohio 1969, where court articulated tougher criteria on conditions where free speech can be prohibited. Aspects such as the influence of the landmark case known as Texas v. Johnson, (1989), which further challenged limits posed on constitutionally protected speech, including symbolic expressions like flag-burning are also examined at length in this paper. The paper uses some of these important cases to demonstrate the evolving nature of the Clear and Present Danger Doctrine which captures the ever-shifting relationship between individual`s free expression and collective safety.


Freedom of speech and expression as enshrined in the First Amendment to the United States Constitution, and similarly in article 19 of the Indian Constitution. However, this freedom of speech and expression is not absolute and have certain boundaries which are continuously tested and redefined throughout the American Judicial history. The clear and present danger test developed in the year 1919 by renowned jurist Justice Oliver Wendell Holmes serves as a cornerstone in understanding and differentiating between what is covered under the First Amendment as freedom of speech and expression and what cannot be covered under the scope of freedom of speech and expression and what is out of the scope of the First Amendment to the United States Constitution. The clear and present danger test provide a framework for balancing the individual's right to freedom of speech and expression with the government's interest in maintaining public order security and discipline in society.

The clear and pleasant danger test originating in the landmark decision of Schneck vs. United[i] States in the year 1919 was first articulated by Justice Oliver Wendell Holmes Jr., according to this particular standard, any speech made in the public may be restricted only if such speech presents a clear and imminent danger, or threat to the society or is of such nature that can incite any kind of lawless action or can cause any substantive evils to the society. This. test seemingly straightforward Has nevertheless undergone significant evolution overtime, reflecting the changes in the social and political landscape of the nation.

Origin of the doctrine

The origin of this doctrine can be. traced back to the 1919 case of Schneck vs United States, which was heard by the Supreme court of America. In a unanimous Agreement. of the court an opinion by Justice Oliver Wendell Holmes Jr. wherein he quoted:

“The 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 danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.”

The Honorable Justice Holmes distinguished between the ‘clear and present danger test’ and the ‘bad tendency test’, which was well entrenched into English law and came up strongly in Gitlow v. New York (1925)[ii]. Justice Holmes said, “In a time of peace, the petitioners and all their codefendants would have been within their constitutional rights.”

Therefore, it goes this way that in cases where the facts of the matter make it possible for reasonable minds to assume that for instance, the communicator intended to commit a crime banned by the state and furthermore, for it to be apparent beyond all doubt that the said communication has the capability to yield.

The bad tendency test differs from the clear and present danger test as the former involves less differentiations of circumstances. Finally, Honorable Justice Holmes finally felt that the clear-and present danger test set out and expounded upon in the Schenck case was not protective enough of fundamental rights and freedoms. Having made this statement, later in the year, in Abrams v. United States (1919)[iii], he observed that “we should be eternally vigilant against attempts to check the expression of opinions . . . unless they so imminently threaten immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country.”

In this quote from his dissent in the case, Hon’ble Justice Holmes emphasized the importance of safeguarding freedom of speech and expression in a democratic society. For the purpose of understanding, we shall dissect the quotation said by the Hon’ble Judge:

  1. "Eternally vigilant against attempts to check the expression of opinions":

  2. Here, the Fundamental value of free speech is stressed upon as being a cornerstone of democracy. It is argued that society should always be watchful and protective of people’s right to express their opinion and ideas without the fear of censorship or repression.

  3. "Unless they so imminently threaten immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country": Here, it is acknowledged that there may be situations where restrictions on free speech are necessary. The Hon’ble Judge argued that limitations on speech should only be imposed when there is an imminent and immediate threat to the lawful and essential functions of the government or the safety of the nation. In such cases, he suggests that the government may need to intervene to prevent harm or chaos.

  4. Emphasizing the importance of speaking freely and expressing ourselves to protect our freedom reminds us that there must be a close look at all limitations on speech to determine if they are unjustly interfering with basic rights or freedoms. Speech laws should be scrutinized to ascertain whether it struck an appropriate balance between protecting religious feelings and upholding freedom of expression.

Brandenburg v. Ohio[iv]: The “Clear and Present Danger” doctrine takes a new turn. The Brandenburg v. Ohio (1969) forms an important part of the clear and present danger doctrine which has seen drastic changes in its interpretation and application by the courts. The Supreme Court examined whether the rights of individuals speech promoting violence and anarchy guaranteed under the First Amendment.

In an important decision, the Supreme Court overturned Brandenburg’s sentence by stating that the Ohio statute was incompatible with the First amendment. The Court, led by Justice William Brennan, articulated a more stringent standard for the clear and present danger test, requiring:

Imminent lawless action: In addition, the speech should not be aimed at instigating or causing immediate unlawful action. The new interpretation, however, reduced the area of restricted speech in comparison with the previous ones.

Likelihood of incitement: Such action will probably occur as a result of the speech. It made its case more effective and added a stronger element of causation such as providing proof that the speech was likely to create illegal actions.

The application of this doctrine changed direction with regards the speech that advocates for violence and lawlessness during the Brandenburg v. Ohio case. This ruling had several significant impacts:

More robust protection for radical speech: This made it harder for state to control speech that is obscene even in circumstances where a person’s thoughts are controversial or offending.

Focus on intent and context: The court highlighted, speaker`s intention and surrounding environment is an important factor for consideration when making such statements. As such, simple calls to violence alone or highly speculative advocacy would not have been prohibited.

Debate and controversy: Whereas some people view Brandenburg as a milestone in their fight for freedom, some others argue that it brought about an unprecedented level of confusion into how the authorities could handle violent threats.

Brandenburg v. Ohio remains a significant case in the history of free speech laws and the clear and present danger doctrine, expanding the scope of protected speech and establishing a stricter standard for the application of the clear and present danger doctrine. However, the case also continues to be debated and interpreted, highlighting the ongoing tension between individual expression and collective security in a free society.

Texas vs Johnson (1989) is indeed a milestone in free speech controversy and ‘clear and present’ test. Here, the Supreme Court sought to determine which of the constitutional rights provided in the First Amendment protected this sensitive activity.

Facts of the Case:

In 1984, during the republican national convention held in Dallas, TX, Gregory Lee Johnson, a protester burned an American flag. Johnson was then found guilty according to a Texas legislation that outlawed the destruction of a sacred relic, in this case an American flag.

The Court's Decision:

The Supreme Court overturned Johnson’s conviction with a vote of five to four, stating that the Texas law was unconstitutional under the first amendment of the American constitution. In this case, Justice William Brennan wrote in the majority on behalf of the Court that burning a flag was symbolic speech protected by the First Amendment. He, moreover, contended that the government was unable to impose restraint on such speech, except in case the government showed an apparent and immediate threat of violence.

In this regard, the court decided to analyze the case applying the Brandenburg v. Ohio (1969) standard, where speech advocating actions aimed at violence or breach of the law must immediately provoke unlawful behavior with a high chance of resulting into it. Nevertheless, the Act did not violate the stringent standard since it was considered “offensive” and “provocative.” Therefore, the Court found the Act of flag burning on public property unconstitutional.

With Texas v. Johnson[v], the Court protected the right to burn that flag as a highly contentious act under the First Amendment. The case underscored the significance of symbolic speech, recognizing that one may articulate forceful messages protected under the First Amendment through actions. It also illustrated how difficult it is to apply the clear and present danger test in cases of ideas such as flag burning.

Indian Context

Justice Subba Rao in Superintendent, Central Prison v. Ram Manohar Lohia[vi] created a test called ‘proximate nexus’ which is an Indian iteration of the Clear and present danger test that regulates free speech on grounds of public order.” …The restriction in the interest of public order to be a reasonable one must be proximately connected with it, not distantly construed imaginary or hypothetical or too remote from its effect on public order.”

In this case, the Supreme Court or Hon'ble Apex court set down the criteria for banning speech that could disturb public peace. The basic elements set out by the Hon’ble Apex Court for those tests are:

a.      Direct link with public order

b.     Potential disruption shall not be remote

The legal parameters laid out in the said case hold great significance in deciding about speech's impact on arousing disturbance in public order. The test provides for that the speech in question should have a direct and unambiguous relationship with the threat to public order. Speech must have the potential to provoke public disorder and there is an instantaneous nexus between the speech and the potential disorder which must be direct. Thence it mandates unambiguously that the potential disruption of public order ought not to be remote but rather must be apparent and foreseeable. This implies that speech must have the capacity to bring immediate and substantial harm to public order. This standard ensures that the freedom of speech and expression is upheld while preserving public order and peace.

Similar instances of usage of the clear and present danger test or the proximate nexus test as established by Justice Subba Rao in the Indian context are found in the cases of Kedar Nath Singh v. State of Bihar (1962)[vii], S. Rangarajan v. P. Jagjivan Ram (1989)[viii].


The trajectory taken by the Clear and Present Danger Doctrine reveals a noteworthy pathway towards reconciling society’s right to free speech with the government’s responsibility to protect the public peace. This doctrine started its journey with the landmark case of Schenck v. U.S and moved through dynamic metamorphoses in Brandenburg v. Ohio and Texas v. Johnson and even applied in the Indian context called “proximate nexus test”. In particular, the Brandenburg ruling required that the speech should constitute a substantial threat of immediate incitement to unlawful action in order to justify its restriction. The case of Texas v. Johnson also highlighted the complexities of the Clear and Present Danger standard when dealing with expressive issues in symbolic form.

This doctrine continues to raise ongoing debates in relation to its interpretation and practice in democratic nations as they try to strike the balance between personal rights and national safety. The journey undertaken by this doctrine epitomizes an enduring challenge: managing a delicate equilibrium that protects the fundamental right of freedom of speech but promotes societal cohesion.


[i] Schenck v. United States, 249 U.S. 47 (1919), Justia Law, (last visited Dec 10, 2023).

[ii] Gitlow v. New York, 268 U.S. 652 (1925), Justia Law, (last visited Dec 10, 2023).

[iii] Abrams v. United States, 250 U.S. 616 (1919), Justia Law, (last visited Dec 10, 2023).

[iv] Brandenburg v. Ohio, 395 U.S. 444 (1969), Justia Law, (last visited Dec 10, 2023).

[v] Texas v. Johnson, 491 U.S. 397 (1989), Justia Law, (last visited Dec 10, 2023).

[vi] India, superintendent central prisons v. Ram Manohar Lohia, 1960 Air 633, Global Freedom of Expression, (last visited Dec 10, 2023).

[vii] Kedar Nath Singh v state of bihar, Global Freedom of Expression (2021), (last visited Dec 10, 2023).

[viii] India, S. Rengarajan and Ors V. P. Jagjivan Ram (1989), 2 SCC 574, Global Freedom of Expression, (last visited Dec 10, 2023).


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