From Clear and Present Danger to Imminent Lawless Action: 100 Years of First Amendment Jurisprudence — Best Chicago Libel Defamation and Slander Lawyers Near Oak Brook and Naperville

This year marks one hundred years since the birth of modern First Amendment jurisprudence. In 1919, as the United States was recovering from the effects of World War I, the U.S. Supreme Court grappled with a series of cases involving the speech of political dissidents charged with violating federal laws designed to quell criticism of the U.S. war effort, draft, or policy toward foreign nations.

The first of the free speech cases that came before the Supreme Court in 1919 was Schenck v. United States. The Schenck defendants were convicted for violating the Espionage Act of 1917 for distributing leaflets that criticized the draft and supported that position by reciting language from the 13th Amendment. Writing for a unanimous court, Justice Oliver Wendell Holmes affirmed the defendants’ convictions, reasoning that what can be said in times of peace may not be legal during times of war. In short, the First Amendment had limits.

Holmes reasoned that, “[t]he character of every act depends upon the circumstances in which it is done,” which he followed with the now-famous hypothetical of “a man in falsely shouting fire in a theatre and causing a panic.” Holmes’s opinion was also noteworthy in that it introduced the “clear and present danger” test which became the test applied by courts in First Amendment cases for the next five decades.

Perhaps the most impactful opinion to come from the 1919 free speech cases was Justice Holmes’s dissent in Abrams v. United States­—a dissent that has come to be known as the “great dissent.” Few could have known at the time Justice Holmes penned his dissent that his words would begin shaping the contours of our understanding of the First Amendment and the freedoms guaranteed by it—freedoms that are considered by many around the world to be quintessentially American.

The Abrams case was not particularly noteworthy. It was in many respects a repeat of Schenck. And like Schenck, the convictions of the defendants charged with violating the Sedition Act of 1918 were upheld. But despite coming only a few months apart, Justice Holmes voted to uphold the convictions in Schenck and to overturn the convictions in Abrams. What was the difference?

In the summer of 1919, Holmes was influenced by the fiery criticism he received for his opinions from intellectual giants of the day Harvard law professor Zechariah Chaffee, political scientist Harold Laski, and federal judge Learned Hand. Holmes took these criticisms to heart—so profoundly in fact that he wrote in a letter to a friend around the same time as Abrams that he considered the principle of absolute freedom of speech so important that, he wrote, “I hope I would die for it.” The influence of the criticisms he received was on full display in his Abrams dissent.

Significantly, Holmes introduced the concept of the “marketplace of ideas”—one of the most often quoted and pervasive themes in modern First Amendment law—writing that, “the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

The concept is simple yet profound: society as a whole benefits when all ideas are allowed into the marketplace of ideas where they will be judged on their merits and flourish or fade accordingly without government censorship or sponsorship.

Over the next half-century, the clear and present danger test was refined and expounded upon but continued to dominate free speech jurisprudence. In 1969, however, First Amendment law made a quantum leap with the Supreme Court’s opinion in Brandenburg v. Ohio which abandoned the clear and present danger test in favor of a new “imminent lawless action” test.

In Brandenburg, the Supreme Court overturned the conviction of a Ku Klux Klan member under an Ohio statute that criminalized the advocacy of violence as a means of accomplishing political reform. In overturning the conviction, the court held that a statute that punishes abstract advocacy of violence or lawlessness violates the First Amendment. Advocacy, the Court, reasoned is protected by the First Amendment while incitements to “imminent lawless action” are not. Because the Ohio statute failed to distinguish between speech that merely advocates for violence and speech that has the tendency to incite imminent lawless action, it could not stand. The new test, known as the “imminent lawless action” test or simply the Brandenburg test, has three distinct elements: intent, imminence, and likelihood. Speech that meets these three elements falls outside of the First Amendment’s protection. Courts still apply the imminent lawless action test today and are in the process of fleshing out the bounds and extremities of its three elements.

Lubin Austermuehle’s Cook and DuPage County First Amendment attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. You can view a federal court decision where we prevailed in a libel per se claim asserting the innocent infringer defense here. Here you can find an arbitration decision where we successfully defended our client’s right to post negative opinions on YouTube about a used car dealer. We also file suit on behalf of businesses and professionals who have been wrongfully attacked on the internet where First Amendment rights are being abused and do not provide a viable defense. We recently required a defendant who publicized an allegedly false lawsuit concerning our client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16,000,000.00 defamation per se suit in federal district court.

Our Winnetka and Western Springs defamation and slander lawyers have more than three decades of experience helping individuals and businesses who have been accused of defamation, libel, and slander. We also assist businesses and owners who are the victims of defamatory and slanderous attacks on their businesses and reputations. We also handle emergency commercial litigation involving preliminary injunctions and temporary restraining orders (TROs), defamation, libel, and covenants not to compete, franchise, distributor and dealer wrongful termination, and trade secrets along with various other types of business disputes involving shareholders, partnerships, closely held businesses and employee or executive breaches of fiduciary duties. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping individual and business clients protect their investments and get back to business as usual. From offices in Elmhurst and Wilmette, near Park Ridge and Highland Park, we serve clients throughout Illinois and the Midwest. You can contact us online here or call us on our locally at 630-333-0333.

Contact Information