Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In Abrams v. United States, 1 however, Justices Holmes and Brandeis dissented upon affirmance of the convictions of several alien anarchists who had printed leaflets seeking to encourage discontent with the United States' participation in World War I. 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. 2 Moreover, in Gitlow v. New York, 3 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 legislative body might prevent. . . . And the 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. 4 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 to the Court. 5 It is not clear what test, if any, the majority would have used, although the
bad tendency test has usually been associated with the case. In Whitney v. California, 6 the Court affirmed a conviction under a criminal syndicalism statute based on the defendant’s association with and membership in an organization that advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves
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 fails 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. 7
Clear and Present Danger Revised: Dennis
In Dennis v. United States, 8 the Court sustained the constitutionality of the Smith Act, 9 which proscribed advocacy of the overthrow by force and violence of the government of the United States, and upheld 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. 10
Here, by contrast,
[o]verthrow of the government by force and violence is certainly a substantial enough interest for the government to limit speech. 11 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. 12 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. 13 The
gravity of the evil, discounted by its improbability was found to justify the convictions. 14
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. 15 Its replacement for part of this period was the much disputed
balancing test, which made its appearance the year before Dennis in American Communications Ass'n v. Douds. 16 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. 17 Chief Justice Vinson, for the Court, 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, the substantive evil at which § 9(h) is aimed, 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 who, so Congress has found, have the will and power to do so without advocacy or persuasion that seeks acceptance in the competition of the market. 18
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. 19 As the interest in the restriction, the government’s right to prevent political strikes and the disruption of commerce, was 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. 20
Thereafter, during the 1950s and the early 1960s, the Court used the balancing test in a series of decisions in which the issues were not, as they were not in Douds and Dennis, matters of expression or advocacy as a threat but rather were governmental inquiries into associations and beliefs of persons or governmental regulation of associations of persons, based on the idea that beliefs and associations provided adequate standards for predicting future or intended conduct that was within the power of government to regulate or to prohibit. Thus, in the leading case on balancing, Konigsberg v. State Bar of California, 21 the Court upheld the refusal of the state to certify an applicant for admission to the bar. Required to satisfy the Committee of Bar Examiners that he was of
good moral character, Konigsberg testified that he did not believe in the violent overthrow of the government and that he had never knowingly been a member of any organization that advocated such action, but he declined to answer any question pertaining to membership in the Communist Party.
For the Court, Justice Harlan began by asserting that freedom of speech and association were not absolutes but were subject to various limitations. Among the limitations,
general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. 22 The governmental interest involved was the assurance that those admitted to the practice of law were committed to lawful change in society and it was proper for the state to believe that one possessed of
a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of government did not meet the standard of fitness. 23 On the other hand, the First Amendment interest was limited because there was
minimal effect upon free association occasioned by compulsory disclosure under the circumstances.
There is here no likelihood that deterrence of association may result from foreseeable private action . . . for bar committee interrogations such as this are conducted in private. . . . Nor is there the possibility that the State may be afforded the opportunity for imposing undetectable arbitrary consequences upon protected association . . . for a bar applicant’s exclusion by reason of Communist Party membership is subject to judicial review, including ultimate review by this Court, should it appear that such exclusion has rested on substantive or procedural factors that do not comport with the Federal Constitution. 24
Balancing was used to sustain congressional and state inquiries into the associations and activities of individuals in connection with allegations of subversion 25 and to sustain proceedings against the Communist Party and its members. 26 In certain other cases, involving state attempts to compel the production of membership lists of the National Association for the Advancement of Colored People and to investigate that organization, use of the balancing test resulted in a finding that speech and associational rights outweighed the governmental interest claimed. 27 The Court used a balancing test in the late 1960s to protect the speech rights of a public employee who had criticized his employers. 28 Balancing, however, was not used when the Court struck down restrictions on receipt of materials mailed from Communist countries, 29 and it was not used in cases involving picketing, pamphleteering, and demonstrating in public places. 30 But the only case in which it was specifically rejected involved a statutory regulation like those that had given rise to the test in the first place. United States v. Robel 31 held invalid under the First Amendment a statute that made it unlawful for any member of an organization that the Subversive Activities Control Board had ordered to register to work in a defense establishment. 32 Although Chief Justice Warren for the Court asserted that the vice of the law was that its proscription operated per se
without any need to establish that an individual’s association poses the threat feared by the Government in proscribing it, 33 the rationale of the decision was not clear and present danger but the existence of less restrictive means by which the governmental interest could be accomplished. 34 In a concluding footnote, the Court said:
It has been suggested that this case should be decided by ‘balancing’ the governmental interests . . . against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. Faced with a clear conflict between a federal statute enacted in the interests of national security and an individual’s exercise of his First Amendment rights, we have confined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. In making this determination we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment. But we have in no way ‘balanced’ those respective interests. We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict. 35
The Smith Act provision making it a crime to organize or become a member of an organization that teaches, advocates, or encourages the overthrow of government by force or violence was used by the government against Communist Party members. In Scales v. United States, 36 the Court affirmed a conviction under this section and held it constitutional against First Amendment attack. Advocacy such as the Communist Party engaged in, Justice Harlan wrote for the Court, was unprotected under Dennis, and he could see no reason why membership that constituted a purposeful form of complicity in a group engaging in such advocacy should be a protected form of association. Of course,
[i]f there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but the membership clause . . . does not make criminal all association with an organization which has been shown to engage in illegal advocacy. 37 Only an
active member of the Party – one who with knowledge of the proscribed advocacy intends to accomplish the aims of the organization – was to be punished, the Court said, not a
nominal, passive, inactive or purely technical member. 38