The Moral Failure of the Clear and Present Danger Test

The clear and present danger test has been used for almost a century to determine the speech the government may restrain. This test assumes that at some point speech transforms into an act and at that moment the speech becomes punishable. Under the clear and present danger test, the First Amendment does not protect speech that is an incitement to imminent lawless action. Professor Dow suggests that the clear and present danger test protects too little speech.

He posits that speech should be protected unless the following three conditions are met: (1) the speaker's specific intent in uttering the words was to cause an unlawful injury, (2) the injury in fact occurred as a proximate result of the speech, and (3) the speaker, through his or her speech, overwhelmed the will of the listener. Professor Dow's proposed test is based upon the belief that the listener has a will of his or her own and thus may choose whether to act on the words he or she heard. This test springs from the understanding that the Free Speech Clause recognizes that evil words do not always lead to evil acts. The proposed test would allow the punishment only of the most culpable speakers, those who overwhelm the will of the listener and in essence force the listener to act as the speaker desires