Re: National Security Supersedes Constitution--Police State in Place?

Keith Elis (
Sat, 06 Dec 1997 19:44:32 -0500

Lee Daniel Crocker wrote:

> [Someone wrote]
> > In the United States there is a docterine known as a "Clear and Present
> > Danger." If there is a "Clear and Present Danger" all rights under the
> > Constitution are null and void...
> There is no such general legal doctrine recognized by any court in the US.

True enough. And the holdovers of the "clear and present danger" test
have been largely declawed even in terms of "fighting words." In
_Brandenberg v. Ohio_ the court excludes from first amendment protection
speech "likely to incite or produce" imminent unlawful action. This is
arguably similar in application (if not language) to the "clear and
present danger" test in _Schenk v. U.S._ which excludes from first
amendment protection any speech which creates a "clear and present
danger" of "substantive evil" of the kind which Congress has the right
to proscribe. Fortunately _Brandenberg_ eviscerates its test with an
intent requirement, making the current state of the law relatively
pro-free speech. However (to be realistic), the Supreme Court always
seems to be the most willing to protect free speech at the times when
such protection is the least necessary (during peace-time, economic
boom, etc.)

Boat drinks,