All judicial line‐drawing between individual and societal rights and obligations involves a degree of “balancing” (See First Amendment Balancing). But, subsumed under the general notion of balancing, a number of tests have surfaced. These tests were not really articulated by the Supreme Court until the end of World War I; very little litigation on the free‐speech front reached the high tribunal until then. Not counting “balancing” as a specific test per se, a handful of speech tests may be identified. In roughly chronological order, they are (1) the “clear and present danger” test, (2) the “bad tendency” test, (3) the “public versus private speech” test, and (4) the “clear and present danger plus imminence” test—with the last now widely recognized as the controlling Court doctrine.
Authorship of the clear and present danger doctrine belongs to Justice Oliver Wendell Holmes, with an assist from Judge Learned Hand and active support from Justice Louis D. Brandeis. Initially developed by Holmes in Schenck v. United States (1919), the case grew out of activities engaged in by Schenck and some colleagues that were designed to hamper the government's wartime effort. Convicted under the Espionage Act of 1917, Schenck appealed on First Amendment freedom‐of‐speech grounds. Speaking for a unanimous Court, Holmes pointed out that in ordinary times the defendants' activities would have been constitutionally protected, but that the character of every act depends upon the circumstances in which it is done. Holmes added, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. … 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” (p. 52).
But six years later, in Gitlow v. New York (1925), the new doctrine was modified by adopting a “kill the serpent in the egg” approach, which came to be known as the bad tendency test. The New York State Criminal Anarchy Act of 1902 prohibited numerous subversive activities, including the “advocacy, advising, or teaching” of the overthrow of New York's government. Gitlow published and distributed a pamphlet entitled Left Wing Manifesto and was convicted for violation of the statute. With Holmes and Brandeis in bitter dissent, Justice Edward T. Sanford, for the Court, contended that the danger from the utterances at issue could not reasonably be required to be measured in “the nice balance of a jeweler's scale,” that a “single revolutionary spark may kindle a fire,” and that the state may thus “suppress the threatened danger in its incipiency” (p. 669).
In Dennis v. United States (1951), eleven top members of the Communist party had been tried and convicted under the Smith Act of 1940 by a lower federal court. Although he claimed to be utilizing the clear and present danger test, Chief Justice Fred M. Vinson, in upholding the conviction, adapted the formula to ascertain “whether the gravity of the ‘evil’ discounted by its improbability” would justify governments limits on speech (p. 510). This leaned more toward the bad tendency test and provoked passionate dissents by Justices Hugo Black and William O. Douglas.
The “public versus private speech” test was prominently articulated by the philosopher and educator Alexander Meiklejohn in the second quarter of the twentieth century. To Meiklejohn, “public” speech comprises any expression concerning public policy and/or public officials and is entitled to absolute protection in the interests of a self‐governing, free, democratic society, based on the First Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment. An example would be the advocacy of a violent change of our form of government. “Private” speech, on the other hand, pertains to speech that concerns only private individuals in their personal, private concerns, and it can accordingly be regulated or restricted, but only under the due process of law safeguards of the Fifth and Fourteenth Amendments. Perhaps surprisingly, one of Meiklejohn's examples is the realm of the visual arts.
Fourth is the clear and present danger plus imminence test. Suggested as early as 1927 by Brandeis and Holmes in the former's concurring opinion in Whitney v. California, it became Court doctrine some four decades later in Brandenburg v. Ohio (1969). In it, the Court made clear that mere abstract advocacy of the use of force or of law violation was no longer legally or constitutionally punishable “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action” (p. 444).
See also Speech and the Press.
Bibliography
- Alexander Meiklejohn, Free Speech and Its Relation to Self‐Government (1948)
— Henry J. Abraham
