Can We Take It?

Schenck, Jeanne M.

doi:10.1093/ptj/47.3.183

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“…211 Of course, Holmes's original "clear and present danger" formulation, forged in the heat of World War I, impliedly stressed imminence in a context capable of evaluating the gravity of a speech-adduced harm. 212 Writing for a plurality in Dennis, Chief Justice Vinson formulated the "clear and present danger" test to do the same by embracing the formula of Judge Learned Hand: "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." 213 Academic commentators, of course, frowned upon Hand's formula as insufficiently generous to "protected" speech-the adjective, of course, begging the question.…”

Section: New York Times Company V United Statesmentioning

confidence: 99%

The Supreme Court in Times of Hot and Cold War: Learning from the Sounds of Silence for a War on Terrorism

Kmiec

2003

J Supreme Court History

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Introduction Justice William J. Brennan once remarked that the Court has never fully developed a jurisprudence of national security. It is simply too episodic, he said.1 Our present Chief Justice would, it would seem, largely agree, though his own research shows some greater willingness for the Court to superintend—at least after the fact2—the actions of the executive in times of war or similar crisis. My assignment in this essay was to ask the question slightly differently; namely, has the posture of the Court differed in times of hot or cold war, and if so, how has it differed? As will be evident momentarily, that question is less helpful to our present circumstance than it might seem. Why? Because, frankly, we are in neither a hot nor cold war, but something quite different3—something that has the potential to be not only hot, but blistering, and something which will likely never be fully appreciated as having gone truly cold.

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Section: New York Times Company V United Statesmentioning

confidence: 99%

The Supreme Court in Times of Hot and Cold War: Learning from the Sounds of Silence for a War on Terrorism

Kmiec

2003

J Supreme Court History

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Can We Take It?

Cited by 1 publication

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The Supreme Court in Times of Hot and Cold War: Learning from the Sounds of Silence for a War on Terrorism

The Supreme Court in Times of Hot and Cold War: Learning from the Sounds of Silence for a War on Terrorism

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