Cornell Law Review

Article

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

Cass R. Sunstein, Robert Walmsley University Professor, Harvard University.

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…

Nov 2019