# 3 ,,,1992 CONSTITUTION OF THE UNITED STATES]
[Page 1020-1187]
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FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
[[Page 1034]]
Subsequent Punishment: Clear and Present Danger and Other Tests
Granted that the context of the controversy over freedom of
expression at the time of the ratification of the First Amendment was
almost exclusively limited to the problem of prior restraint, still the
words speak of laws ``abridging'' freedom of speech and press and the
modern adjudicatory disputes have been largely fought out over
subsequent punishment. ``The mere exemption from previous restraints
cannot be all that is secured by the constitutional provisions, inasmuch
as of words to be uttered orally there can be no previous censorship,
and the liberty of the press might be rendered a mockery and a delusion,
and the phrase itself a byword, if, while every man was at liberty to
publish what he pleased, the public authorities might nevertheless
punish him for harmless publications. . . .
``[The purpose of the speech-press clauses] has evidently been
to protect parties in the free publication of matters of public concern,
to secure their right to a free discussion of public events and public
measures, and to enable every citizen at any time to bring the
government and any person in authority to the bar of public opinion by
any just criticism upon their conduct in the exercise of the authority
which the people have conferred upon them. . . . The evils to be
prevented were not the censorship of the press merely, but any action of
the government by means of which it might prevent such free and general
discussion of public matters as seems absolutely essential to prepare
the people for an intelligent exercise of their rights as
citizens.''\70\ A rule of law permitting criminal or civil liability to
be imposed upon those who speak or write on public issues and their
superintendence would lead to ``self-censorship'' by all which would not
be relieved by permitting a defense of truth. ``Under such a rule,
would-be critics of official conduct may be deterred from voicing their
criticism, even though it is believed to be true and even though it is
in fact true, because of doubt whether it can be proved in court or fear
of the expense of having to do so . . . . The rule thus dampens the
vigor and limits the variety of public debate.''\71
\70\2 T. Cooley, A Treatise on the Constitutional Limitations
Which Rest Upon the Legislative Powers of the States of the American
Union 885-86 (8th ed. 1927).
\71\New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964).
See also Speiser v. Randall, 357 U.S. 513, 526 (1958); Smith v.
California, 361 U.S. 147, 153-154 (1959); Time, Inc. v. Hill, 385 U.S.
374, 389 (1967).
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[[Page 1035]]
``Persecution for the expression of opinions seems to me
perfectly logical. If you have no doubt of your premises or your power
and want a certain result with all your heart you naturally express your
wishes in law and sweep away all opposition. To allow opposition by
speech seems to indicate that you think the speech impotent, as when a
man says that he has squared the circle, or that you do not care whole-
heartedly for the result, or that you doubt either your power or your
premises. But when men have realized that time has upset many fighting
faiths, they may come to believe even more than they believe the very
foundations 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.''\72\ ``Those who won our independence believed that the
final end of the State was to make men free to develop their faculties;
and that in its government the deliberative forces should prevail over
the arbitrary. They valued liberty both as an end and as a means. They
believed liberty to be the secret of happiness and courage to be the
secret of liberty. They believed that freedom to think as you will and
to speak as you think are means indispensable to the discovery and
spread of political truth; that without free speech and assembly
discussion would be futile; that with them, discussion affords
ordinarily adequate protection against the dissemination of noxious
doctrine; that the greatest menace to freedom is an inert people; that
public discussion is a political duty; and that this should be a
fundamental principle of the American government. They recognized the
risks to which all human institutions are subject. But they knew that
order cannot be secured merely through fear of punishment for its
infraction; that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate;
that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies;
and that the fitting remedy for evil counsels is good ones. Believing in
the power of reason as applied through public discussion, they eschewed
silence coerced by law--the argument of force in its worst form.
Recognizing the occasional tyrannies of governing majorities, they
amended the Con
[[Page 1036]]
stitution so that free speech and assembly should be guaranteed.''\73
\72\Abrams v. United States, 250 U.S. 616, 630 (1919) (Justice
Holmes dissenting).
\73\Whitney v. California, 274 U.S. 357, 375-76 (1927) (Justice
Brandeis concurring).
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``But, although the rights of free speech and assembly are
fundamental, they are not in their nature absolute. Their exercise is
subject to restriction, if the particular restriction proposed is
required in order to protect the State from destruction or from serious
injury, political, economic or moral.''\74\ The fixing of a standard is
necessary, by which it can be determined what degree of evil is
sufficiently substantial to justify resort to abridgment of speech and
press and assembly as a means of protection and how clear and imminent
and likely the danger is.\75\ That standard has fluctuated over a period
of some fifty years now and it cannot be asserted with a great degree of
confidence that the Court has yet settled on any firm standard or any
set of standards for differing forms of expression.\76\ The cases are
instructive of the difficulty.
\74\Id. at 373.
\75\Id. at 374.
\76\On the great range of expressive communications, see infra.
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Clear and Present Danger.--Certain expression, oral or written,
may incite, urge, counsel, advocate, or importune the commission of
criminal conduct; other expression, such as picketing, demonstrating,
and engaging in certain forms of ``symbolic'' action may either counsel
the commission of criminal conduct or itself constitute criminal
conduct. Leaving aside for the moment the problem of ``speech-plus''
communication, it becomes necessary to determine when expression that
may be a nexus to criminal conduct is subject to punishment and
restraint. At first, the Court seemed disposed in the few cases reaching
it to rule that if the conduct could be made criminal, the advocacy of
or promotion of the conduct could be made criminal.\77\ Then, in Schenck
v. United States,\78\ in which defendants had been convicted of seeking
to disrupt recruitment of military personnel by dissemination of certain
leaflets, Justice Holmes formulated the ``clear and present danger''
test which has ever since been the starting point of argument. ``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.''\79\
The convictions were unanimously affirmed. One week
[[Page 1037]]
later, the Court again unanimously affirmed convictions under the same
Act with Justice Holmes speaking. ``[W]e think it necessary to add to
what has been said in Schenck v. United States . . . only that the First
Amendment while prohibiting legislation against free speech as such
cannot have been, and obviously was not, intended to give immunity for
every possible use of language. We venture to believe that neither
Hamilton nor Madison, nor any other competent person then or later, ever
supposed that to make criminal the counseling of a murder within the
jurisdiction of Congress would be an unconstitutional interference with
free speech.''\80\ And in Debs v. United States,\81\ Justice Holmes was
found referring to ``the natural and intended effect'' and ``probable
effect'' of the condemned speech in common-law tones.
\77\Davis v. Beason, 133 U.S. 333 (1890); Fox v. Washington, 236
U.S. 273 (1915).
\78\249 U.S. 47 (1919).
\79\Id. at 52.
\80\Frohwerk v. United States, 249 U.S., 204, 206 (1919)
(citations omitted).
\81\249 U.S. 211, 215-16 (1919).
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But in Abrams v. United States,\82\ Justices Holmes and Brandeis
dissented upon affirmance of the convictions of several alien anarchists
who had printed leaflets seeking to encourage discontent with United
States participation in the War. The majority simply referred to Schenck
and Frohwerk to rebut the First Amendment argument, but the dissenters
urged that the Government had made no showing of a clear and present
danger. Another affirmance by the Court of a conviction, the majority
simply saying that ``[t]he tendency of the articles and their efficacy
were enough for the offense,'' drew a similar dissent.\83\ Moreover, in
Gitlow v. New York,\84\ a conviction for distributing a manifesto in
violation of a law making it criminal to advocate, advise, or teach the
duty, necessity, or propriety of overthrowing organized government by
force or violence, the Court affirmed in the absence of any evidence
regarding the effect of the distribution and in the absence of any
contention that it created any immediate threat to the security of the
State. In so doing, the Court discarded Holmes' test. ``It is clear that
the question in such cases [as this] is entirely different from that
involved in those cases where the statute merely prohibits certain acts
involving the danger of substantive evil, without any reference to
language itself, and it is sought to apply its provisions to language
used by the defendant for the purpose of bringing about the prohibited
results. . . . In such cases it has been held that the general
provisions of the statute may be constitutionally applied to the
specific utterance of the defendant if its natural tendency and probable
effect was to bring about the substantive evil which the
[[Page 1038]]
legislative body might prevent. . . . [T]he general statement in the
Schenck Case . . . was manifestly intended . . . to apply only in cases
of this class, and has no application to those like the present, where
the legislative body itself has previously determined the danger of
substantive evil arising from utterances of a specified character.''\85\
Thus, a state legislative determination ``that utterances advocating the
overthrow of organized government by force, violence, and unlawful
means, are so inimical to the general welfare, and involve such danger
of substantive evil that they may be penalized in the exercise of its
police power'' was almost conclusive on the Court.\86\ It is not clear
what test, if any, the majority would have utilized, although the ``bad
tendency'' test has usually been associated with the case. In Whitney v.
California,\87\ the Court affirmed a conviction under a criminal
syndicalism statute based on defendant's association with and membership
in an organization which advocated the commission of illegal acts,
finding again that the determination of a legislature that such advocacy
involves ``such danger to the public peace and the security of the
State'' was entitled to almost conclusive weight. In a technical
concurrence which was in fact a dissent from the opinion of the Court,
Justice Brandeis restated the ``clear and present danger'' test.
``[E]ven advocacy of violation [of the law] . . . is not a justification
for denying free speech where the advocacy falls short of incitement and
there is nothing to indicate that the advocacy would be immediately
acted on . . . . In order to support a finding of clear and present
danger it must be shown either that immediate serious violence was to be
expected or was advocated, or that the past conduct furnished reason to
believe that such advocacy was then contemplated.''\88
\82\250 U.S. 616 (1919).
\83\Schaefer v. United States, 251 U.S. 466, 479 (1920). See
also Pierce v. United States, 252 U.S. 239 (1920).
\84\268 U.S. 652 (1925)
\85\Id. at 670-71.
\86\Id. at 668. Justice Holmes dissented. ``If what I think the
correct test is applied, it is manifest that there was no present danger
of an attempt to overthrow the government by force on the part of the
admittedly small minority who share the defendant's views. It is said
that this manifesto was more than a theory, that it was an incitement.
Every idea is an incitement. It offers itself for belief, and, if
believed, is acted on unless some other belief outweighs it, or some
failure of energy stifles the movement at its birth. The only difference
between the expression of an opinion and an incitement in the narrower
sense is the speaker's enthusiasm for the result. Eloquence may set fire
to reason. But whatever may be thought of the redundant discourse before
us, it had no chance of starting a present conflagration. If, in the
long run, the beliefs expressed in proletarian dictatorship are destined
to be accepted by the dominant forces of the community, the only meaning
of free speech is that they would be given their chance and have their
way.'' Id. at 673.
\87\274 U.S. 357, 371-72 (1927).
\88\Id. at 376.
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The Adoption of Clear and Present Danger.--The Court did not
invariably affirm convictions during this period in cases
[[Page 1039]]
like those under consideration. In Fiske v. Kansas,\89\ it held that a
criminal syndicalism law had been invalidly applied to convict one
against whom the only evidence was the ``class struggle'' language of
the constitution of the organization to which he belonged. A conviction
for violating a ``red flag'' law was voided as the statute was found
unconstitutionally vague.\90\ Neither case mentioned clear and present
danger. An ``incitement'' test seemed to underlie the opinion in De
Jonge v. Oregon,\91\ upsetting a conviction under a criminal syndicalism
statute for attending a meeting held under the auspices of an
organization which was said to advocate violence as a political method,
although the meeting was orderly and no violence was advocated during
it. In Herndon v. Lowry,\92\ the Court narrowly rejected the contention
that the standard of guilt could be made the ``dangerous tendency'' of
one's words, and indicated that the power of a State to abridge speech
``even of utterances of a defined character must find its justification
in a reasonable apprehension of danger to organized government.''
\89\274 U.S. 380 (1927).
\90\Stromberg v. California, 283 U.S. 359 (1931).
\91\299 U.S. 353 (1937). See id. at 364-65.
\92\301 U.S. 242, 258 (1937). At another point, clear and
present danger was alluded to without any definite indication it was the
standard. Id. at 261.
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Finally, in Thornhill v. Alabama,\93\ a state anti-picketing law
was invalidated because ``no clear and present danger of destruction of
life or property, or invasion of the right of privacy, or breach of the
peace can be thought to be inherent in the activities of every person
who approaches the premises of an employer and publicizes the facts of a
labor dispute involving the latter.'' During the same term, the Court
reversed the breach of the peace conviction of a Jehovah's Witness who
had played an inflammatory phonograph record to persons on the street,
the Court discerning no clear and present danger of disorder.\94
\93\310 U.S. 88, 105 (1940). The Court admitted that the
picketing did result in economic injury to the employer, but found such
injury ``neither so serious nor so imminent'' as to justify restriction.
The role of clear and present danger was not to play a future role in
the labor picketing cases.
\94\Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).
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The stormiest fact situation faced by the Court in applying
clear and present danger occurred in Terminiello v. City of Chicago,\95\
in which a five-to-four majority struck down a conviction obtained after
the judge instructed the jury that a breach of the peace could be
committed by speech that ``stirs the public to anger, invites dispute,
brings about a condition of unrest, or creates a disturbance.'' ``A
function of free speech under our system of government,'' wrote Justice
Douglas for the majority, ``is to invite dispute.
[[Page 1040]]
It may indeed best serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are, or even
stirs people to anger. Speech is often provocative and challenging. It
may strike at prejudices and preconceptions and have profound unsettling
effects as it presses for acceptance of an idea. That is why freedom of
speech, though not absolute, . . . is nevertheless protected against
censorship or punishment, unless shown likely to produce a clear and
present danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest.''\96\ The dissenters focused on the
disorders which had actually occurred as a result of Terminiello's
speech, Justice Jackson saying: ``Rioting is a substantive evil, which I
take it no one will deny that the State and the City have the right and
the duty to prevent and punish . . . . In this case the evidence proves
beyond dispute that danger of rioting and violence in response to the
speech was clear, present and immediate.''\97\ The Jackson position was
soon adopted in Feiner v. New York,\98\ in which Chief Justice Vinson
said that ``[t]he findings of the state courts as to the existing
situation and the imminence of greater disorder coupled with
petitioner's deliberate defiance of the police officers convince us that
we should not reverse this conviction in the name of free speech.''
\95\337 U.S. 1 (1949).
\96\Id. at 4-5.
\97\Id. at 25-26.
\98\340 U.S. 315, 321 (1951).
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Contempt of Court and Clear and Present Danger.--The period
during which clear and present danger was the standard by which to
determine the constitutionality of governmental suppression of or
punishment for expression was a brief one, extending roughly from
Thornhill to Dennis.\99\ But in one area it was vigorously, though not
without dispute, applied to enlarge freedom of utterance and it is in
this area that it remains viable. In early contempt-of-court cases in
which criticism of courts had been punished as contempt, the Court
generally took the position that even if freedom of speech and press was
protected against governmental abridgment, a publication tending to
obstruct the administration of justice was punishable, irrespective of
its truth.\100\ But in Bridges v. California,\101\ in which contempt
citations had been brought against a newspaper and a labor leader for
statements made about pending judicial proceedings, Justice Black for a
five-to-four Court
[[Page 1041]]
majority began with application of clear and present danger, which he
interpreted to require that ``the substantive evil must be extremely
serious and the degree of imminence extremely high before utterances can
be punished.''\102\ He noted that the ``substantive evil here sought to
be averted . . . appears to be double: disrespect for the judiciary; and
disorderly and unfair administration of justice.'' The likelihood that
the court will suffer damage to its reputation or standing in the
community was not, Justice Black continued, a ``substantive evil'' which
would justify punishment of expression.\103\ The other evil,
``disorderly and unfair administration of justice,'' ``is more plausibly
associated with restricting publications which touch upon pending
litigation.'' But the ``degree of likelihood'' of the evil being
accomplished was not ``sufficient to justify summary punishment.''\104\
In dissent, Justice Frankfurter accepted the application of clear and
present danger, but he interpreted it as meaning no more than a
``reasonable tendency'' test. ``Comment however forthright is one thing.
Intimidation with respect to specific matters still in judicial
suspense, quite another. . . . A publication intended to teach the judge
a lesson, or to vent spleen, or to discredit him, or to influence him in
his future conduct, would not justify exercise of the contempt power.
. . . It must refer to a matter under consideration and constitute in
effect a threat to its impartial disposition. It must be calculated to
create an atmospheric pressure incompatible with rational, impartial
adjudication. But to interfere with justice it need not succeed. As with
other offenses, the state should be able to proscribe attempts that fail
because of the danger that attempts may succeed.''\105
\99\Thornhill v. Alabama, 310 U.S. 88 (1940); Dennis v. United
States, 341 U.S. 494 (1951).
\100\Patterson v. Colorado, 205 U.S. 454 (1907); Toledo
Newspaper Co. v. United States, 247 U.S. 402 (1918).
\101\314 U.S. 252 (1941).
\102\Id. at 263.
\103\Id. at 270-71.
\104\Id. at 271-78.
\105\Id. at 291. Joining Justice Frankfurter in dissent were
Chief Justice Stone and Justices Roberts and Byrnes.
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A unanimous Court next struck down the contempt conviction
arising out of newspaper criticism of judicial action already taken,
although one case was pending after a second indictment. Specifically
alluding to clear and present danger, while seeming to regard it as
stringent a test as Justice Black had in the prior case, Justice Reed
wrote that the danger sought to be averted, a ``threat to the impartial
and orderly administration of justice,'' ``has not the clearness and
immediacy necessary to close the door of permissible public
comment.''\106\ Divided again, the Court a year later set aside contempt
convictions based on publication, while a motion for a
[[Page 1042]]
new trial was pending, of inaccurate and unfair accounts and an
editorial concerning the trial of a civil case. ``The vehemence of the
language used is not alone the measure of the power to punish for
contempt. The fires which it kindles must constitute an imminent, and
not merely a likely, threat to the administration of justice. The danger
must not be remote or even probable; it must immediately imperil.''\107
\106\Pennekampt v. Florida, 328 U.S. 331, 336, 350 (1946). To
Justice Frankfurter, the decisive consideration was whether the judge or
jury is, or presently will be, pondering a decision that comment seeks
to affect. Id. at 369.
\107\Craig v. Harney, 331 U.S. 367, 376 (1947). Dissenting with
Chief Justice Vinson, Justice Frankfurter said: ``We cannot say that the
Texas Court could not properly find that these newspapers asked of the
judge, and instigated powerful sections of the community to ask of the
judge, that which no one has any business to ask of a judge, except the
parties and their counsel in open court, namely, that he should decide
one way rather than another.'' Id. at 390. Justice Jackson also
dissented. Id. at 394. See also Landmark Communications v. Virginia, 435
U.S. 829, 844 (1978); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 562-
63 (1976).
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In Wood v. Georgia,\108\ the Court again divided, applying clear
and present danger to upset the contempt conviction of a sheriff who had
been cited for criticizing the recommendation of a county court that a
grand jury look into African American bloc voting, vote buying, and
other alleged election irregularities. No showing had been made, said
Chief Justice Warren, of ``a substantive evil actually designed to
impede the course of justice.'' The case presented no situation in which
someone was on trial, there was no judicial proceeding pending that
might be prejudiced, and the dispute was more political than
judicial.\109\ A unanimous Court recently seems to have applied the
standard to set aside a contempt conviction of a defendant who, arguing
his own case, alleged before the jury that the trial judge by his bias
had prejudiced his trial and that he was a political prisoner. Though
the defendant's remarks may have been disrespectful of the court, the
Supreme Court noted that ``[t]here is no indication . . . that
petitioner's statements were uttered in a boisterous tone or in any wise
actually disrupted the court proceeding'' and quoted its previous
language about the imminence of the threat necessary to constitute
contempt.\110
\108\370 U.S. 375 (1962).
\109\Id. at 383-85, 386-90. Dissenting, Justices Harlan and
Clark thought that the charges made by the defendant could well have
influenced the grand jurors in their deliberations and that the fact
that laymen rather than judicial officers were subject to influence
should call forth a less stringent test than when the latter were the
object of comment. Id. at 395.
\110\In re Little, 404 U.S. 553, 555 (1972). The language from
Craig v. Harney, 331 U.S. 367, 376 (1947), is quoted supra, text
accompanying n.13.
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Clear and Present Danger Revised: Dennis.--In Dennis v. United
States,\111\ the Court sustained the constitutionality of the Smith
Act,\112\ which proscribed advocacy of the overthrow by force and
violence of the government of the United States, and upheld
[[Page 1043]]
convictions under it. Dennis' importance here is in the rewriting of the
clear and present danger test. For a plurality of four, Chief Justice
Vinson acknowledged that the Court had in recent years relied on the
Holmes-Brandeis formulation of clear and present danger without actually
overruling the older cases that had rejected the test; but while clear
and present danger was the proper constitutional test, that ``shorthand
phrase should [not] be crystallized into a rigid rule to be applied
inflexibly without regard to the circumstances of each case.'' It was a
relative concept. Many of the cases in which it had been used to reverse
convictions had turned ``on the fact that the interest which the State
was attempting to protect was itself too insubstantial to warrant
restriction of speech.''\113\ Here, in contrast, ``[o]verthrow of the
Government by force and violence is certainly a substantial enough
interest for the Government to limit speech.''\114\ And in combating
that threat, the Government need not wait to act until the putsch is
about to be executed and the plans are set for action. ``If Government
is aware that a group aiming at its overthrow is attempting to
indoctrinate its members and to commit them to a course whereby they
will strike when the leaders feel the circumstances permit, action by
the Government is required.''\115\ Therefore, what does the phrase
``clear and present danger'' import for judgment? ``Chief Judge Learned
Hand, writing for the majority below, interpreted the phrase as follows:
`In each case [courts] must ask whether the gravity of the ``evil,''
discounted by its improbability, justifies such invasion of free speech
as is necessary to avoid the danger.' 183 F.2d at 212. We adopt this
statement of the rule. As articulated by Chief Judge Hand, it is as
succinct and inclusive as any other we might devise at this time. It
takes into consideration those factors which we deem relevant, and
relates their significances. More we cannot expect from words.''\116\
The ``gravity of the evil, discounted by its improbability'' was found
to justify the convictions.\117
\111\341 U.S. 494 (1951).
\112\Ch. 439, 54 Stat. 670 (1940), 18 U.S.C. Sec. 2385.
\113\Dennis v. United States, 341 U.S. 494, 508 (1951).
\114\Id. at 509.
\115\Id. at 508, 509.
\116\Id. at 510. Justice Frankfurter, concurring, adopted a
balancing test, id. at 517, discussed infra, pp. 1023-28. Justice
Jackson appeared to proceed on a conspiracy approach rather than one
depending on advocacy. Id. at 561. Justices Black and Douglas dissented,
reasserting clear and present danger as the standard. Id. at 579, 581.
Note the recurrence to the Learned Hand formulation in Nebraska Press
Ass'n v. Stuart, 427 U.S. 539, 562 (1976), although the Court appeared
in fact to apply balancing.
\117\In Yates v. United States, 354 U.S. 298 (1957), the Court
substantially limited both the Smith Act and the Dennis case by
interpreting the Act to require advocacy of unlawful action, to require
the urging of doing something now or in the future, rather than merely
advocacy of forcible overthrow as an abstract doctrine, and by finding
the evidence lacking to prove the former. Of Dennis, Justice Harlan
wrote: ``The essence of the Dennis holding was that indoctrination of a
group in preparation for future violent action, as well as exhortation
to immediate action, by advocacy found to be directed to `action for the
accomplishment' of forcible overthrow, to violence as `a rule or
principle of action,' and employing `language of incitement,' id. at
511-12, is not constitutionally protected when the group is of
sufficient size and cohesiveness, is sufficiently oriented towards
action, and other circumstances are such as reasonably to justify
apprehension that action will occur.'' Id. at 321.
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[[Page 1044]]
Balancing.--Clear and present danger as a test, it seems clear,
was a pallid restriction on governmental power after Dennis and it
virtually disappeared from the Court's language over the next twenty
years.\118\ Its replacement for part of this period was the much
disputed ``balancing'' test, which made its appearance in the year prior
to Dennis in American Communications Ass'n v. Douds.\119\ There the
Court sustained a law barring from access to the NLRB any labor union if
any of its officers failed to file annually an oath disclaiming
membership in the Communist Party and belief in the violent overthrow of
the government.\120\ For the Court, Chief Justice Vinson rejected
reliance on the clear and present danger test. ``Government's interest
here is not in preventing the dissemination of Communist doctrine or the
holding of particular beliefs because it is feared that unlawful action
will result therefrom if free speech is practiced. Its interest is in
protecting the free flow of commerce from what Congress considers to be
substantial evils of conduct that are not the products of speech at all.
Section 9(h), in other words, does not interfere with speech because
Congress fears the consequences of speech; it regulates harmful conduct
which Congress has determined is carried on by persons who may be
identified by their political affiliations and beliefs. The Board does
not contend that political strikes . . . are the present or impending
products of advocacy of the doctrines of Communism or the expression of
belief in overthrow of the Government by force. On the contrary, it
points out that such strikes are called by persons
[[Page 1045]]
who, so Congress has found, have the will and power to do so without
advocacy.''\121
\118\Cf. Brennan, The Supreme Court and the Meiklejohn
Interpretation of the First Amendment, 79 Harv. L. Rev. 1, 8 (1965). See
Garner v. Louisiana, 368 U.S. 157, 185-207 (1961) (Justice Harlan
concurring).
\119\339 U.S. 382 (1950). See also Osman v. Douds, 339 U.S. 846
(1950). Balancing language was used by Justice Black in his opinion for
the Court in Martin v. City of Struthers, 319 U.S. 141, 143 (1943), but
it seems not to have influenced the decision. Similarly, in Schneider v.
Irvington, 308 U.S. 147, 161-62 (1939), Justice Roberts used balancing
language which he apparently did not apply.
\120\The law, Sec. 9(h) of the Taft-Hartley Act, 61 Stat. 146
(1947), was repealed, 73 Stat. 525 (1959), and replaced by a section
making it a criminal offense for any person ``who is or has been a
member of the Communist Party'' during the preceding five years to serve
as an officer or employee of any union. Sec. 504, 73 Stat. 536 (1959);
29 U.S.C. Sec. 504. It was held unconstitutional in United States v.
Brown, 381 U.S. 437 (1965).
\121\American Communications Ass'n v. Douds, 339 U.S. 382, 396
(1950).
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The test, rather, must be one of balancing of interests. ``When
particular conduct is regulated in the interest of public order, and the
regulation results in an indirect, conditional, partial abridgement of
speech, the duty of the courts is to determine which of these two
conflicting interests demands the greater protection under the
particular circumstances presented.''\122\ Inasmuch as the interest in
the restriction, the government's right to prevent political strikes and
the disruption of commerce, is much more substantial than the limited
interest on the other side in view of the relative handful of persons
affected in only a partial manner, the Court perceived no difficulty
upholding the statute.\123
\122\Id. at 399.
\123\Id. at 400-06.
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Justice Frankfurter in Dennis\124\ rejected the applicability of
clear and present danger and adopted a balancing test. ``The demands of
free speech in a democratic society as well as the interest in national
security are better served by candid and informed weighing of the
competing interests, within the confines of the judicial process, than
by announcing dogmas too inflexible for the non-Euclidian problems to be
solved.''\125\ But the ``careful weighing of conflicting
interests''\126\ not only placed in the scale the disparately-weighed
interest of government in self-preservation and the interest of
defendants in advocating illegal action, which alone would have
determined the balance, it also involved the Justice's philosophy of the
``confines of the judicial process'' within which the role of courts, in
First Amendment litigation as in other, is severely limited. Thus,
``[f]ull responsibility'' may not be placed in the courts ``to balance
the relevant factors and ascertain which interest in the circumstances
[is] to prevail.'' ``Courts are not representative bodies. They are not
designed to be a good reflex of a democratic society.'' Rather,
``[p]rimary responsibility for adjusting the interests which compete in
the situation before us of necessity belongs to the Congress.''\127\
Therefore, after considering at some length the factors to be balanced,
Justice Frankfurter concluded: ``It is not for us to decide how we would
adjust the clash of interests which this case presents were the primary
responsibility for reconciling it ours. Congress has determined that the
danger created by advocacy of overthrow justifies the ensuing
restriction on freedom of speech.
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