ABSTRACT
It was Justice Holmes who first formulated the doctrine as a principle of constitutional law. In this discussion in The Common Law Holmes prepared the ground for his clear and present danger doctrine, and even for its revision by later Justices of the Supreme Court. It must be noted that the defendants in the Schenck case were convicted, and that the Supreme Court unanimously affirmed the judgments: the clear and present danger doctrine was used to support a denial of free speech. No mention was made by the Court of the clear and present danger doctrine; and the contention that the circulars were protected by the First Amendment was quickly disposed of by mere reference to the Schenck and Frohwerk decisions. It was not until 1937, in Herndon v. Lowry, that the Court used the language of the clear and present danger doctrine; and even so, only obliquely.
