Brandenburg v. Ohio · ¶14

The “clear and present danger” test was adumbrated by Mr. Justice Holmes in a case arising during World War I — a war “declared” by the Congress, not by the Chief Executive. The case was Schenck v. United States, 249 U. S. 47, 52, where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort. The First Amendment was tendered as a defense. Mr. Justice Holmes in rejecting that defense said:

U. S. Reports, bound volume
U. S. Reports, volume 395, at 444 (Library of Congress) · transcription: Caselaw Access Project
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