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nization to which he belonged. A conviction for violating a ‘‘red flag’’ law was voided as the statute was found unconstitutionally vague. 414 Neither case mentioned clear and present danger. An ‘‘incitement’’ test seemed to underlie the opinion in De Jonge v. Oregon, 415 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, 416 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.’’ Finally, in Thornhill v. Alabama, 417 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. 418 The stormiest fact situation faced by the Court in applying clear and present danger occurred in Terminiello v. City of Chicago, 419 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 dis- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00084 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1097 420 337 U.S. at 4-5. 421 337 U.S. at 25-26. 422 340 U.S. 315, 321 (1951). 423 Thornhill v. Alabama, 310 U.S. 88 (1940); Dennis v. United States, 341 U.S. 494 (1951). 424 Patterson v. Colorado, 205 U.S. 454 (1907); Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918). 425 314 U.S. 252 (1941). turbance.’’ ‘‘A function of free speech under our system of government,’’ wrote Justice Douglas for the majority, ‘‘is to invite dispute. 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.’’ 420 The dissenters focused on the disorders that 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.’’ 421 The Jackson position was soon adopted in Feiner v. New York, 422 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.’’ 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. 423 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. 424 But in Bridges v. California, 425 in which contempt citations had been brought VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00085 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1098 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 426 314 U.S. at 263. 427 314 U.S. at 270-71. 428 314 U.S. at 271-78. 429 314 U.S. at 291. Joining Justice Frankfurter in dissent were Chief Justice Stone and Justices Roberts and Byrnes. against a newspaper and a labor leader for statements made about pending judicial proceedings, Justice Black for a five-to-four Court 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.’’ 426 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. 427 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.’’ 428 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.’’ 429 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 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 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00086 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1099 430 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. 431 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). 432 370 U.S. 375 (1962). 433 370 U.S. 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. 434 In re Little, 404 U.S. 553, 555 (1972). The language from Craig v. Harney, 331 U.S. 367, 376 (1947), is quoted in the previous paragraph of text, supra. public comment.’’ 430 Divided again, the Court a year later set aside contempt convictions based on publication, while a motion for a 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.’’ 431 In Wood v. Georgia, 432 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. 433 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. 434 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00087 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1100 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 435 341 U.S. 494 (1951). 436 54 Stat. 670 (1940), 18 U.S.C. § 2385. 437 Dennis v. United States, 341 U.S. 494, 508 (1951). 438 341 U.S. at 509. 439 341 U.S. at 508, 509. Clear and Present Danger Revised: Dennis.—In Dennis v. United States, 435 the Court sustained the constitutionality of the Smith Act, 436 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.’’ 437 Here, by contrast, ‘‘[o]verthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech.’’ 438 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.’’ 439 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 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00088 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1101 440 341 U.S. at 510. Justice Frankfurter, concurring, adopted a balancing test, id. at 517, discussed in the next topic. 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. 441 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. 442 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). 443 339 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 that he apparently did not apply. 444 The law, § 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. § 504, 73 Stat. 536 (1959); 29 U.S.C. § 504. It was held unconstitutional in United States v. Brown, 381 U.S. 437 (1965). expect from words.’’ 440 The ‘‘gravity of the evil, discounted by its improbability’’ was found to justify the convictions. 441 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. 442 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. 443 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. 444 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 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00089 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1102 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 445 American Communications Ass’n v. Douds, 339 U.S. 382, 396 (1950). 446 339 U.S. at 399. 447 339 U.S. at 400-06. 448 Dennis v. United States, 341 U.S. 494, 517 (1951) (concurring opinion). 449 341 U.S. at 524-25. 450 341 U.S. at 542. 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 who, so Congress has found, have the will and power to do so without advocacy.’’ 445 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.’’ 446 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. 447 Justice Frankfurter in Dennis 448 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 interest, within the confines of the judicial process, than by announcing dogmas too inflexible for the non- Euclidian problems to be solved.’’ 449 But the ‘‘careful weighing of conflicting interests’’ 450 not only placed in the scale the disparatelyweighed 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 soci- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00090 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1103 451 341 U.S. at 525. 452 341 U.S. at 550-51. 453 341 U.S. at 540. 454 341 U.S. at 551. 455 366 U.S. 36 (1961). ety.’’ Rather, ‘‘[p]rimary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress.’’ 451 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. 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.’’ 452 Only if the balance struck by the legislature is ‘‘outside the pale of fair judgment’’ 453 could the Court hold that Congress was deprived by the Constitution of the power it had exercised. 454 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, 455 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 constitu- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00091 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1104 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 456 366 U.S. at 50-51. 457 366 U.S. at 51-52. 458 366 U.S. 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. 459 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). 460 Communist Party v. SACB, 367 U.S. 1 (1961); Scales v. United States, 367 U.S. 203 (1961). 461 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). 462 Pickering v. Board of Education, 391 U.S. 563 (1968). tionality which has necessarily involved a weighing of the governmental interest involved.’’ 456 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. 457 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.’’ 458 Balancing was used to sustain congressional and state inquiries into the associations and activities of individuals in connection with allegations of subversion 459 and to sustain proceedings against the Communist Party and its members. 460 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. 461 The Court used a balancing test in the late 1960s to protect the speech rights of a public

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