n, and such teaching and counselling are themselves
criminal and proper subjects of punishment, as aiding and abetting crime
are in all other cases."[78] No talk here about the necessity for
showing that the prohibited teaching, counselling, advising, etc., must
be shown to have occurred in circumstances creating a clear and present
danger of its being followed.

In Fox _v._ Washington,[79] decided in 1915, the question at issue was
the constitutionality of a Washington statute denouncing "the wilful
printing, circulation, etc., of matter advocating or encouraging the
commission of any crime or breach of the peace or which shall tend to
encourage or advocate disrespect for law or any court or courts of
justice." The State Supreme Court had assumed that the case was governed
by the guarantees of the United States Constitution of freedom of
speech, and especially by the Fourteenth Amendment, and its decision
sustaining the statute was upheld by the Supreme Court on the same
assumption, in the case of a person indicted for publishing an article
encouraging and inciting what the jury had found to be a breach of State
laws against indecent exposure. Again, one notes the total absence of
any reference to the clear and present danger rule. But not all State
enactments survived judicial review prior to the adoption of the clear
and present danger test. In 1927 the Court disallowed a Kansas statute
which, as interpreted by the highest State court, made punishable the
joining of an organization teaching the inevitability of "the class
struggle";[80] three years later it upset a California statute which
forbade in all circumstances the carrying of a red flag as a symbol of
opposition to government;[81] and 6 years after that it upset a
conviction under an Oregon statute for participating in a meeting held
under the auspices of an organization which was charged with advocating
violence as a political method, although the meeting itself was orderly
and did not advocate violence.[82] In none of these cases was the clear
and present danger test mentioned.

EMERGENCE OF THE CLEAR AND PRESENT TEST

In Schenck _v._ United States[83] appellants had been convicted of
conspiracy to violate the Espionage Act of June 15, 1917[84] "by causing
and attempting to cause insubordination, etc., in the military and naval
forces of the United States, and to obstruct the recruiting and
enlistment service of the United States, when the United States