We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right.
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or you power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition…. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundation of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.
That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge
晨枫 发表于 2014-6-13 03:40 5 T# Y$ y* m) F+ q" M
Clear and present danger不好定义,这会被滥用吗?Patiot Act是不是用的就是Clear and present danger?
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Dracula 发表于 2014-6-12 14:19 . ?3 @1 p3 H [ } y7 X2 V
我还没有写完。这只是第一篇。我预计要写6章,外加Mollie Steimer的小传。包括二十年代,二战,麦卡锡主 ...
老兵帅客 发表于 2014-6-14 04:25 L- i1 q( y+ k5 z4 P8 I
所谓clear and present danger,我感觉其实就是看形势需要,形势不好了就收紧,否则就放松,不过如此。只不 ...
Dracula 发表于 2014-6-14 13:28 4 y5 t! }( I n1 h
美国是common law的国家,法律条文一般规定的很简明,比如第一宪法修正案规定政府不得限制言论自由,但是 ...
Dracula 发表于 2014-6-13 16:36 # m2 F+ |# A; o+ s4 R; L" j- ?
这只是第一篇,后面还有不少发展。1951年对美国共产党领导人诉讼的判决我觉得是有道理的(尽管我更赞同后 ...
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