clear and present danger

In a speech yesterday at the 2017 International Institute for Strategic Studies (IISS) Shangri-la Dialogue in Singapore, Defense Secretary James Mattis called North Korea a “clear and present danger” to the world. In general, I don’t have any problem with that at face value. North Korea does pose a threat to global safety and security, and their reckless antics must not be ignored.

But I do find it peculiar that, of all the many ways to describe North Korea, Mattis invoked a legal term, “clear and present danger”, that was established by the Supreme Court as a test for determining when and where the government may impose restrictions on what would otherwise be Constitutionally protected speech. Basically, the Supreme Court set forth guidelines that for 1st Amendment rights to be overruled, there must be a “clear and present” danger that such speech will result in “imminent harm.” Think “yelling fire in a crowded theater.”

In general, the “clear and present danger” test helps to strengthen speech protections by making it more difficult for the government to prosecute speech it deems undesirable, and that’s a good thing.

But according to the ACLU, during the era of McCarthyism, the clear and present danger test was severely weakened when the Supreme Court fell prey to the “witchhunt mentality” and held that “speakers could be punished if they advocated overthrowing the government — even if the danger of such an occurrence were both slight and remote. As a result, many political activists were prosecuted and jailed simply for advocating communist revolution. Loyalty oath requirements for government employees were upheld; thousands of Americans lost their jobs on the basis of flimsy evidence supplied by secret witnesses.”

Thankfully, 1st Amendment protections were strengthened in 1969, when the Supreme Court “struck down the conviction of a Ku Klux Klan member, and established a new standard: Speech can be suppressed only if it is intended, and likely to produce, ‘imminent lawless action.’ Otherwise, even speech that advocates violence is protected. The Brandenberg standard prevails today.”

As it pertains to National Security, the ACLU explains how the government has “historically overused the concept of ‘national security’ to shield itself from criticism, and to discourage public discussion of controversial policies or decisions.”

As to whether the “clear and present danger” terminology has been used in this case to set the stage for legal battles to come is, at this point, anyone’s guess. However, it is not a leap to see how an administration so adverse to transparency, and so hostile to criticism, may want to exploit “national emergencies” to reassert its right to engage in censorship of speech it deems is dangerous or weakens its ability to defend the interests of this country from enemy actors, both foreign or domestic. Of course, what “weakens” an ability of a government to carry out its constitutional duties is open to interpretation, and its up to the citizens of this country to stay vigilant lest we fall victim to the dark shadows of censorship.

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