A Comparative Study of the “Clear and Present Danger” Doctrine - Focusing on the United States and Europe

This paper compares the constitutional approaches of the United States and European countries to freedom of expression, and examines whether the “clear and present danger” principle can be regarded as a universally accepted legal standard. In the United States, freedom of expression is protected almost absolutely under the First Amendment and the “marketplace of ideas” theory, with government regulation permitted only when there is a clear and present danger of unlawful action. In contrast, European countries such as France, Germany, and the United Kingdom regard freedom of expression as a right that must be balanced with other constitutional values such as human dignity, public order, and the preservation of democratic order. France criminalizes the glorification of terrorism or crimes against humanity; Germany punishes Holocaust denial and Nazi glorification; and the UK sanctions speech that encourages terrorism. These jurisdictions prioritize proportionality and social context over imminence or direct causality, and justify preventive restrictions under the principle of militant democracy. Article 10 of the European Convention on Human Rights (ECHR) provides for the harmonization of freedom of expression with other public interests, and the European Court of Human Rights has recognized a wide range of state-imposed limitations on this basis. Countries such as Canada and Japan also employ proportionality-based balancing tests, and rarely adopt the U.S.- style imminence-centered approach. This reflects the exceptional nature of the American doctrine in the global landscape of free speech jurisprudence. From a comparative constitutional perspective, relying on the “clear and present danger” principle as the primary ground for challenging the constitutionality of Article 7(1) (acts benefiting the enemy) and Article 7(5) (enemy-benefiting expressive materials) of South Korea’s National Security Act appears unconvincing. Even in the United States, this doctrine is not consistently applied to expressions related to national security.