Brandenburg v. Ohio · ¶22

Those, then, were the World War I cases that put the gloss of “clear and present danger” on the First Amendment. Whether the war power — the greatest leveler of them all — is adequate to sustain that doctrine is debatable. The dissents in Abrams, Schaefer, and Pierce show how easily “clear and present danger” is manipulated to crush what Brandéis called “[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions” by argument and discourse (Pierce v. United States, supra, at 273) even in time of war. Though I doubt if the “clear and present danger” test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.

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