ABSTRACT
The clear and danger test developed in Schenck v. United States represents one of the US Supreme Court's first attempts to balance the individual's freedom of political expression and the state's interest in regulating harmful speech. The clear and danger doctrine that emerged from Schenck was used by the Court to determine the conditions under which the government may suppress political expression. Even though the Court has come to rely on the preferred freedoms approach to freedom of expression questions, it has retained the Brandenburg v. Ohio modification of the clear and danger test by relying on the incitement to imminent unlawful action component of the test. The Supreme Court flatly rejected the argument that the 1965 amendment to the federal law was an unconstitutional denial of David Paul O'Brien's right to engage in symbolic speech. Judging from Brandenburg and subsequent cases, the Court seems willing to extend First Amendment protection to "core" political speech regardless of its content.
