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[p.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[p.1045]who, so Congress has found, have the will and power to do so without advocacy.”121

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

Justice Frankfurter in Dennis124 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.[p.1046]The determination was made after due deliberation, and the seriousness of the congressional purpose is attested by the volume of legislation passed to effectuate the same ends.”128 Only if the balance struck by the legislature is “outside the pale of fair judgment”129 could the Court hold that Congress was deprived by the Constitution of the power it had exercised.130

Thereafter, during the 1950’s and the early 1960’s, the Court utilized 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,131 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 which 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.”132 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.133 On the other hand, the First Amendment interest was limited be[p.1047]cause 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.”134

Balancing was used to sustain congressional and state inquiries into the associations and activities of individuals in connection with allegations of subversion135 and to sustain proceedings against the Communist Party and its members.136 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.137 The Court used a balancing test in the late 1960’s to protect the speech rights of a public employee who had criticized his employers.138 On the other hand, balancing was not used when the Court struck down restrictions on receipt of materials mailed from Communist countries,139 and it was similarly not used in cases involving picketing, pamphleteering, and demonstrating in public places.140 But the only case in which it was specifically rejected involved a statutory regulation like those which had given rise to the test in the first[p.1048]place. United States v. Robel141 held invalid under the First Amendment a statute which made it unlawful for any member of an organization which the Subversive Activities Control Board had ordered to register to work in a defense establishment.142 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,”143 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.144 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.”145

The “Absolutist” View of the First Amendment, With a Note on “Preferred Position”.—During much of this period, the opposition to the balancing test was led by Justices Black and Douglas, who espoused what may be called an “absolutist” position, denying the government any power to abridge speech. But the beginnings of such a philosophy may be gleaned in much earlier cases in which a rule of decision based on a preference for First Amendment liberties was prescribed. Thus, Chief Justice Stone in his famous Carolene Products “footnote 4” suggested that the ordinary presumption of constitutionality which prevailed when economic[p.1049]regulation was in issue might very well be reversed when legislation which restricted “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” is called into question.146 Then in Murdock v. Pennsylvania,147 in striking down a license tax on religious colporteurs, the Court remarked that “[f]reedom of press, freedom of speech, freedom of religion are in a preferred position.” Two years later the Court indicated that its decision with regard to the constitutionality of legislation regulating individuals is “delicate . . . [especially] where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions.”148 The “preferred–position” language was sharply attacked by Justice Frankfurter in Kovacs v. Cooper149 and it dropped from the opinions, although its philosophy did not.

Justice Black expressed his position in many cases but his Konigsberg dissent contains one of the lengthiest and clearest expositions of it.150 That a particular governmental regulation abridged speech or deterred it was to him “sufficient to render the action of the State unconstitutional” because he did not subscribe “to the doctrine that permits constitutionally protected rights to be ‘balanced’ away whenever a majority of this Court thinks that a State might have an interest sufficient to justify abridgment of those freedoms . . . I believe that the First Amendment’s unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in this field.”151 As he elsewhere wrote: “First Amendment rights are beyond abridgment either by legislation that directly restrains their exer[p.1050]cise or by suppression or impairment through harassment, humiliation, or exposure by government.”152 But the “First and Fourteenth Amendments . . . take away from government, state and federal, all power to restrict freedom of speech, press and assembly where people have a right to be for such purpose. This does not mean however, that these amendments also grant a constitutional right to engage in the conduct of picketing or patrolling whether on publicly owned streets or on privately owned property.”153 Thus, in his last years on the Court, the Justice, while maintaining an “absolutist” position, increasingly drew a line between “speech” and “conduct which involved communication.”154


Footnotes

118 Cf. Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 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) .
122 Id. at 399.
123 Id. at 400–06.
124 Dennis v. United States, 341 U.S. 494, 517 (1951) (concurring opinion).
125 Id. at 524–25.
126 Id. at 542.
127 Id. at 525.
128 Id. at 550–51.
129 Id. at 540.
130 Id. at 551.
131 366 U.S. 36 (1961) .
132 Id. at 50–51.
133 Id. at 51–52.
134 Id. at 52–53. See also In re Anastaplo, 366 U.S. 82 (1961) . The status of these two cases is in doubt after Baird v. State Bar, 401 U.S. 1 (1971) , and In re Stolar, 401 U.S. 23 (1971) , in which neither the plurality nor the concurring Justice making up the majority used a balancing test.
135 Barenblatt v. United States, 360 U.S. 109 (1959) ; Uphaus v. Wyman, 360 U.S. 72 (1959) ; Wilkinson v. United States, 365 U.S. 399 (1961) ; Braden v. United States, 365 U.S. 431 (1961) .
136 Communist Party v. SACB, 367 U.S. 1 (1961) ; Scales v. United States, 367 U.S. 203 (1961) .
137 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) ; NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964) ; Gibson v. Florida Legislative Investigating Committee, 372 U.S. 539 (1963) .
138 Pickering v. Board of Education, 391 U.S. 563 (1968) .
139 Lamont v. Postmaster General, 381 U.S. 301 (1965) .
140 E.g., Cox v. Louisiana, 379 U.S. 536 and 559 (1965) (2 cases); Edwards v. South Carolina, 372 U.S. 229 (1963) ; Adderley v. Florida, 385 U.S. 39 (1966) ; Brown v. Louisiana, 383 U.S. 131 (1966) . But see Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) , where balancing reappears and in which other considerations overbalance the First Amendment claims.
141 389 U.S. 258 (1967) .
142 Subversive Activities Control Act of 1950, Sec. 5(a)(1)(D), ch. 1024, 64 Stat. 992 , 50 U.S.C. Sec. 784 (a)(1)(D).
143 United States v. Robel, 389 U.S. 258, 265 (1967) .
144 Id. at 265–68.
145 Id. at 268 n.20.
146 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) .
147 319 U.S. 105, 115 (1943) . See also West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943) .
148 Thomas v. Collins, 323 U.S. 516, 529–30 (1945) .
149 336 U.S. 77, 89 (1949) (collecting cases with critical analysis).
150 Konigsberg v. State Bar of California, 366 U.S. 36, 56 (1961) (dissenting opinion). See also Braden v. United States, 365 U.S. 431, 441 (1961) (dissenting); Wilkinson v. United States, 365 U.S. 399, 422 (1961) (dissenting); Uphaus v. Wyman, 364 U.S. 388, 392 (1960) (dissenting); Barenblatt v. United States, 360 U.S. 109, 140 (1959) (dissenting); American Communications Ass’n v. Douds, 339 U.S. 382, 445 (1950) ; Communist Party v. SACB, 367 U.S. 1, 137 (1961) (dissenting); Beauharnais v. Illinois, 343 U.S. 250, 267 (1952) (dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (concurring); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (concurring). For Justice Douglas’ position, see New York Times Co. v. United States, supra, 403U.S. at 720 403U.S. at 720 (concurring); Roth v. United States, 354 U.S. 476, 508 (1957) (dissenting); Brandenburg v. Ohio, 395 U.S. 444, 450 (1969) (concurring).
151 Konigsberg v. State Bar of California, 366 U.S. 36, 60–61 (1961) .
152 Bates v. City of Little Rock, 361 U.S. 516, 528 (1960) (concurring).
153 Cox v. Louisiana, 379 U.S. 559, 578, 581 (1965) (dissenting).
154 These cases involving important First Amendment issues are dealt with infra, pp. 1123–42. See Brown v. Louisiana, 383 U.S. 131 (1966) ; Adderley v. Florida, 385 U.S. 39 (1966) .
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