Does the Clear and Present Danger Test Survive Cost-Benefit Analysis?

Under American regulatory law, the dominant contemporary test involves cost-benefit analysis. The benefits of regulation must justify the costs; if they do, regulation is permissible and even mandatory. Under American free speech law, in sharp contrast, an important contemporary test for the regulation of speech involves “clear and present danger.” In general, officials cannot censor or regulate political speech on the ground that the benefits of regulation justify the costs. They may proceed only if the speech is likely to produce imminent lawless action. In principle, it is not simple to explain why the free speech test does not involve cost-benefit analysis, as indeed both Judge Learned Hand and the Supreme Court insisted that it should in the early 1950s. An initial explanation points to the difficulty of quantifying both costs and benefits in the context of speech. That is indeed a serious challenge, but it does not justify the clear and present danger test, because some form of cost-benefit balancing is possible on a more informal, intuitive basis. A second and more plausible explanation points to the serious risk of institutional bias in any assessment of the costs and benefits of speech. This explanation has considerable force, but it rests on uncertain foundations, because institutional safeguards could be introduced to reduce any such bias. The third and best justification of the clear and present danger test is that in practice, it does not impose high costs, because the speech that ends up being immunized from regulation has not, in practice, turned out to be especially harmful. On this view, the benefits of the clear and present danger test turn out to justify its costs, and the test is not inferior to an approach that would allow regulation of political speech if the benefits of regulation justifies the costs. From 1960 until 2001, this assessment was probably correct for the United States, but fair questions can be raised about whether it is correct today, especially in the context of recruitment to commit terrorist acts, pro-terrorist speech, and certain kinds of “fake news.”