Subsequent Punishment: Clear and Present Danger and Other Tests

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.


Granted that the controversy over freedom of expression at the time of the ratification of the First Amendment was limited almost exclusively to the problem of prior restraint, nevertheless the words speak of laws “abridging” the freedom of speech and press, and the modern cases have been largely fought over subsequent punishment. “[T]he 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 and press clause] 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.”457 A rule of law permitting criminal or civil liability to be imposed upon those who speak or write on public issues would lead to self-censorship, 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.”458

“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.”459 “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 Constitution so that free speech and assembly should be guaranteed.”460

“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.”461 The fixing of a standard is necessary, by which to determine 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.462 That standard has fluctuated over the years, as the cases discussed below demonstrate.

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.463 Then, in Schenck v. United States,464 in which the defendants had been convicted of seeking to disrupt recruitment of military personnel by disseminating leaflets, Justice Holmes formulated the “clear and present danger” test that 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.”465 The convictions were unanimously affirmed. One week later, the Court again unanimously affirmed convictions under the same act with Justice Holmes writing, “we 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 counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.”466 And, in Debs v. United States,467 Justice Holmes upheld a conviction because “the natural and intended effect” and the “reasonably probable effect” of the speech for which the defendant was prosecuted was to obstruct military recruiting.

In Abrams v. United States,468 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.469 Moreover, in Gitlow v. New York,470 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.”471 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.472 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,473 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.”474

The Adoption of Clear and Present Danger.—The Court did not invariably affirm convictions during this period in cases like those under consideration. In Fiske v. Kansas,475 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 because the statute was found unconstitutionally vague.476 Neither case mentioned clear and present danger. An “incitement” test seemed to underlie the opinion in DeJonge v. Oregon,477 upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization that 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,478 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,479 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.480

The stormiest fact situation the Court faced in applying the clear and present danger test occurred in Terminiello v. City of Chicago,481 in which a fivetofour 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. 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.”482 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.”483 The Jackson position was soon adopted in Feiner v. New York,484 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 subject485 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.486 In Bridges v. California,487 however, 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 fivetofour majority, began by applying the clear and present danger test, 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.”488 He noted that “[t]he substantive evil here sought to be averted . . . appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice.” As for the first evil, Justice Black rejected “[t]he assumption that respect for the judiciary can be won by shielding judges from published criticism . . . .”489 As for “[t]he other evil feared, disorderly and unfair administration of justice, [it] 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.”490 In dissent, Justice Frankfurter accepted the application of the 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.”491

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.”492 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.”493

In Wood v. Georgia,494 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.495 A unanimous Court in 1972 apparently 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.496

Clear and Present Danger Revised: Dennis.—In Dennis v. United States,497 the Court sustained the constitutionality of the Smith Act,498 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.”499

Here, by contrast, “[o]verthrow of the government by force and violence is certainly a substantial enough interest for the government to limit speech.”500 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.”501 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.”502 The “gravity of the evil, discounted by its improbability” was found to justify the convictions.503

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.504 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.505 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.506 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.”507

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.”508 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.509

Justice Frankfurter, in his concurring opinion in Dennis v. United States,510 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.”511 But the “careful weighing of conflicting interests”512 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.”513 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.”514 Only if the balance struck by the legislature is “outside the pale of fair judgment”515 could the Court hold that Congress was deprived by the Constitution of the power it had exercised.516

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,517 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.”518 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.519 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.”520

Balancing was used to sustain congressional and state inquiries into the associations and activities of individuals in connection with allegations of subversion521 and to sustain proceedings against the Communist Party and its members.522 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.523 The Court used a balancing test in the late 1960s to protect the speech rights of a public employee who had criticized his employers.524 Balancing, however, was not used when the Court struck down restrictions on receipt of materials mailed from Communist countries,525 and it was not used in cases involving picketing, pamphleteering, and demonstrating in public places.526 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. Robel527 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.528 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,”529 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.530 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.”531

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 that prevailed when economic regulation was in issue might be reversed when legislation is challenged that restricts “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” or that reflects “prejudice against discreet and insular minorities . . . tend[ing] seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”532 Then, in Murdock v. Pennsylvania,533 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.”534 The “preferred-position” language was sharply attacked by Justice Frankfurter in Kovacs v. Cooper,535 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.536 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.”537 As he wrote elsewhere: “First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government.”538 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 purposes. 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.”539 Thus, in his last years on the Court, Justice Black, while maintaining an “absolutist” position, increasingly drew a line between “speech” and “conduct which involved communication.”540

Modern Tests and Standards: Vagueness, Overbreadth, Strict Scrutiny, Intermediate Scrutiny, and Effectiveness of Speech Restrictions.—Vagueness is a due process vice that can be brought into play with regard to any criminal and many civil statutes,541 but it has a special signficance when applied to governmental restrictions of speech: fear that a vague restriction may apply to one’s speech may deter constitutionally protected speech as well as constitutionally unprotected speech. Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths,542 obscenity and indecency,543 and restrictions on public demonstrations.544 It is usually combined with the overbreadth doctrine, which focuses on the need for precision in drafting a statute that may affect First Amendment rights;545 an overbroad statute that sweeps under its coverage both protected and unprotected speech and conduct will normally be struck down as facially invalid, although in a non-First Amendment situation the Court would simply void its application to protected conduct.546

But, even in a First Amendment situation, the Court has written, “there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do now swallow the social benefits of declaring a law ‘overbroad,’ we have insisted that a law’s application to protected speech be ‘substantial,’ not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications, before applying the ‘strong medicine’ of overbreadth invalidation. . . . Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).”547

Out of a concern that is closely related to that behind the overbreadth doctrine, the Court has insisted that when the government seeks to carry out a permissible goal and it has available a variety of effective means to do so, “[i]f the First Amendment means anything, it means that regulating speech must be a last—not first— resort.”548 Thus, the Court applies “strict scrutiny” to content-based regulations of fully protected speech; this means that it requires that such regulations “promote a compelling interest” and use “the least restrictive means to further the articulated interest.”549

With respect to most speech restrictions to which the Court does not apply strict scrutiny, the Court applies intermediate scrutiny; i. e., scrutiny that is “midway between the ‘strict scrutiny’ demanded for content-based regulation of speech and the ‘rational basis’ standard that is applied—under the Equal Protection Clause—to government regulation of nonspeech activities.”550 Intermediate scrutiny requires that the governmental interest be “significant” or “substantial” or “important” (but not necessarily “compelling”), and it requires that the restriction be narrowly tailored (but not necessarily the least restrictive means to advance the governmental interest). Speech restrictions to which the Court does not apply strict scrutiny include those that are not content-based (time, place, or manner restrictions; incidental restrictions) and those that restrict categories of speech to which the Court accords less than full First Amendment protection (campaign contributions; commercial speech).551 Note that restrictions on expression may be content-based, but will not receive strict scrutiny if they “are justified without reference to the content of the regulated speech.”552 Examples are bans on nude dancing, and zoning restrictions on pornographic theaters or bookstores, both of which, although content-based, receive intermediate scrutiny on the ground that they are “aimed at combating crime and other negative secondary effects,” and not at the content of speech.553

The Court uses tests closely related to one another in free speech cases in which it applies intermediate scrutiny. It has indicated that the test for determining the constitutionality of an incidental restriction on speech “in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions,”554 and that “the validity of time, place, or manner restrictions is determined under standards very similar to those applicable in the commercial speech context.”555

In addition, the Supreme Court generally requires—even when applying less than strict scrutiny—that, “[w]hen the government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply ‘posit the existence of the disease sought to be cured.’ . . . It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”556 The Court has held, however, that to sustain a denial of a statute denying minors access to sexually explicit material “requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.”557

In certain other contexts, the Court has relied on “common sense” rather than requiring the government to demonstrate that a recited harm was real and not merely conjectural. For example, it held that a rule prohibiting high school coaches from recruiting middle school athletes did not violate the First Amendment, finding that it needed “no empirical data to credit [the] common-sense conclusion that hard-sell [speech] tactics directed at middle school students could lead to exploitation . . . .”558 On the use of common sense in free speech cases, Justice Souter wrote: “It is not that common sense is always illegitimate in First Amendment demonstration. The need for independent proof varies with the point that has to be established . . . . But we must be careful about substituting common assumptions for evidence when the evidence is as readily available as public statistics and municipal property evaluations, lest we find out when the evidence is gathered that the assumptions are highly debatable.”559

Is There a Present Test?.—Complexities inherent in the myriad varieties of expression encompassed by the First Amendment guarantees of speech, press, and assembly probably preclude any single standard for determining the presence of First Amendment protection. For certain forms of expression for which protection is claimed, the Court engages in “definitional balancing” to determine that those forms are outside the range of protection.560 Balancing is in evidence to enable the Court to determine whether certain covered speech is entitled to protection in the particular context in which the question arises.561 Use of vagueness, overbreadth, and less intrusive means may very well operate to reduce the number of occasions when questions of protection must be answered squarely on the merits. What is observable, however, is the re-emergence, at least in a tentative fashion, of something like the clear and present danger standard in advocacy cases, which is the context in which it was first developed. Thus, in Brandenburg v. Ohio,562 a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terrorist means to achieve political change was reversed. The prevailing doctrine developed in the Communist Party cases was that “mere” advocacy was protected but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected association, regardless of the probability of success.563 In Brandenburg, however, the Court reformulated these and other rulings to mean “that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”564 The Court has not revisited these issues since Brandenburg, so the long-term significance of the decision is yet to be determined.565

457 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).

458 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, 153–54 (1959); Time, Inc. v. Hill, 385 U.S. 374, 389 (1967).

459 Abrams v. United States, 250 U.S. 616, 630 (1919) (Justice Holmes dissenting).

460 Whitney v. California, 274 U.S. 357, 375–76 (1927) (Justice Brandeis concurring).

461 274 U.S. at 373.

462 274 U.S. at 374.

463 Davis v. Beason, 133 U.S. 333 (1890); Fox v. Washington, 236 U.S. 273 (1915).

464 249 U.S. 47 (1919).

465 249 U.S. at 52.

466 Frohwerk v. United States, 249 U.S. 204, 206 (1919) (citations omitted).

467 249 U.S. 211, 215–16 (1919).

468 250 U.S. 616 (1919).

469 Schaefer v. United States, 251 U.S. 466, 479 (1920). See also Pierce v. United States, 252 U.S. 239 (1920).

470 268 U.S. 652 (1925).

471 268 U.S. at 670–71.

472 268 U.S. 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 shared 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 it 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 should be given their chance and have their way.” Id. at 673.

473 274 U.S. 357, 371 (1927).

474 274 U.S. at 376.

475 274 U.S. 380 (1927).

476 Stromberg v. California, 283 U.S. 359 (1931).

477 299 U.S. 353 (1937). See id. at 364–65.

478 301 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.

479 310 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 doctrine of clear and present danger was not to play a future role in the labor picketing cases.

480 Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).

481 337 U.S. 1 (1949).

482 337 U.S. at 4–5.

483 337 U.S. at 25–26.

484 340 U.S. 315, 321 (1951).

485 Thornhill v. Alabama, 310 U.S. 88 (1940); Dennis v. United States, 341 U.S. 494 (1951).

486 Patterson v. Colorado, 205 U.S. 454 (1907); Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918).

487 314 U.S. 252 (1941).

488 314 U.S. at 263.

489 314 U.S. at 270.

490 314 U.S. at 271.

491 314 U.S. at 291.

492 Pennekamp 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.

493 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).

494 370 U.S. 375 (1962).

495 370 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.

496 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.

497 341 U.S. 494 (1951).

498 54 Stat. 670 (1940), 18 U.S.C. § 2385.

499 Dennis v. United States, 341 U.S. 494, 508 (1951).

500 341 U.S. at 509.

501 341 U.S. at 508, 509.

502 341 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.

503 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.

504 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).

505 339 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.

506 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).

507 American Communications Ass’n v. Douds, 339 U.S. 382, 396 (1950).

508 339 U.S. at 399.

509 339 U.S. at 400–06.

510 341 U.S. 494, 517 (1951).

511 341 U.S. at 524–25.

512 341 U.S. at 542.

513 341 U.S. at 525.

514 341 U.S. at 550–51.

515 341 U.S. at 540.

516 341 U.S. at 551.

517 366 U.S. 36 (1961).

518 366 U.S. at 50–51.

519 366 U.S. at 52.

520 366 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.

521 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).

522 Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961); Scales v. United States, 367 U.S. 203 (1961).

523 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 Investigation Committee, 372 U.S. 539 (1963).

524 Pickering v. Board of Education, 391 U.S. 563 (1968).

525 Lamont v. Postmaster General, 381 U.S. 301 (1965).

526 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.

527 389 U.S. 258 (1967).

528 Subversive Activities Control Act of 1950, § 5(a)(1)(D), 64 Stat. 992, 50 U.S.C. § 784(a)(1)(D).

529 United States v. Robel, 389 U.S. 258, 265 (1967).

530 389 U.S. at 265–68.

531 389 U.S. at 268 n.20.

532 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). In other words, whereas economic regulation need have merely a rational basis to be constitutional, legislation of the sort to which Chief Justice Stone referred might be subject to “more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment . . . .” Id. Justice Powell later wrote that footnote 4 “is recognized as a primary source of ‘strict scrutiny’ judicial review.” Lewis F. Powell, Jr., Carolene Products Revisited, 82 Columbia L. Rev. 1087, 1088 (1982).

533 319 U.S. 105, 115 (1943). See also West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943).

534 Thomas v. Collins, 323 U.S. 516, 529–30 (1945).

535 336 U.S. 77, 89 (1949) (collecting cases with critical analysis).

536 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, 403 U.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).

537 Konigsberg v. State Bar of California, 366 U.S. 36, 60–61 (1961).

538 Bates v. City of Little Rock, 361 U.S. 516, 528 (1960) (concurring).

539 Cox v. Louisiana, 379 U.S. 559, 578 (1965) (dissenting) (emphasis in original).

540 These cases involving important First Amendment issues are dealt with infra, under “Speech Plus.” See Brown v. Louisiana, 383 U.S. 131 (1966); Adderley v. Florida, 385 U.S. 39 (1966).

541 The vagueness doctrine generally requires that a statute be precise enough to give fair warning to actors that contemplated conduct is criminal, and to provide adequate standards to enforcement agencies, factfinders, and reviewing courts. See, e.g., Connally v. General Const. Co., 269 U.S. 385 (1926); Lanzetta v. New Jersey, 306 U.S. 451 (1939); Colautti v. Franklin, 439 U.S. 379 (1979); Village of Hoffman Estates v. The Flipside, 455 U.S. 489 (1982).

542 E.g., Cramp v. Board of Pub. Instruction, 368 U.S. 278 (1961); Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589 (1967). See also Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (attorney discipline, extrajudicial statements).

543 E.g., Winters v. New York, 333 U.S. 507 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968); Reno v. ACLU, 521 U.S. 844, 870–874 (1997). In National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), the Court held that a “decency” criterion for the awarding of grants, which “in a criminal statute or regulatory scheme . . . could raise substantial vagueness concerns,” was not unconstitutionally vague in the context of a condition on public subsidy for speech.

544 E.g., Cantwell v. Connecticut, 310 U.S. 296 (1940); Gregory v. City of Chicago, 394 U.S. 111 (1969); Coates v. City of Cincinnati, 402 U.S. 611 (1971). See also Smith v. Goguen, 415 U.S. 566 (1974) (flag desecration law); Lewis v. City of New Orleans, 415 U.S. 130 (1974) (punishment of opprobrious words); Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) (door-to-door canvassing). For an evident narrowing of standing to assert vagueness, see Young v. American Mini Theatres, 427 U.S. 50, 60 (1976).

545 NAACP v. Button, 371 U.S. 415, 432–33 (1963).

546 E.g., Kunz v. New York, 340 U.S. 290 (1951); Aptheker v. Secretary of State, 378 U.S. 500 (1964); United States v. Robel, 389 U.S. 258 (1967); Zwickler v. Koota, 389 U.S. 241 (1967); Lewis v. City of New Orleans, 415 U.S. 130 (1974); Massachusetts v. Oakes, 491 U.S. 576, 581 (1989). But see Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 1190 (2008) (facial challenge to burden on right of association rejected “where the statute has a ‘plainly legitimate sweep’”).

547 Virginia v. Hicks, 539 U.S. 113, 119–20, 124 (2003) (italics in original; citations omitted) (upholding, as not addressed to speech, an ordinance banning from streets within a low-income housing development any person who is not a resident or employee and who “cannot demonstrate a legitimate business or social purpose for being on the premises”). Virginia v. Hicks cited Broadrick v. Oklahoma, 413 U.S. 601 (1973), which, in the majority opinion and in Justice Brennan’s dissent, id. at 621, contains extensive discussion of the overbreadth doctrine. Other restrictive decisions include Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974); Parker v. Levy, 417 U.S. 733, 757–61 (1974); and New York v. Ferber, 458 U.S. 747, 766–74 (1982). Nonetheless, the doctrine continues to be used across a wide spectrum of First Amendment cases. Bigelow v. Virginia, 421 U.S. 809, 815–18 (1975); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Doran v. Salem Inn, 422 U.S. 922, 932–34 (1975); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633–39 (1980); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) (charitable solicitation statute placing 25 percent cap on fundraising expenditures); City of Houston v. Hill, 482 U.S. 451 (1987) (city ordinance making it unlawful to “oppose, molest, abuse, or interrupt” police officer in performance of duty); Board of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987) (resolution banning all “First Amendment activities” at airport); Reno v. ACLU, 521 U.S. 844, 874–879 (1997) (statute banning “indecent” material on the Internet).

548 Thompson v. Western States Medical Center, 535 U.S. 357, 373 (2002).

549 Sable Communications of California v. FCC, 492 U.S. 115, 126 (1989).

550 Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 790 (1994) (parentheses omitted). The Court, however, applied a rational basis standard to uphold a state statute that banned the sale of sexually explicit material to minors. Ginsberg v. New York, 390 U.S. 629, 641 (1968). Of course, governmental restrictions on some speech, such as obscenity and fighting words, receive no First Amendment scrutiny, except that particular instances of such speech may not be discriminated against on the basis of hostility “towards the underlying message expressed.” R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992).

551 E.g., Frisby v. Schultz, 487 U.S. 474, 481 (1988) (time, place, and manner restriction upheld as “narrowly tailored to serve a significant government interest, and leav[ing] open ample alternative channels of communication”); Ward v. Rock Against Racism, 491 U.S. 781, 798–799 (1989) (incidental restriction upheld as “promot[ing] a substantial governmental interest that would be achieved less effectively absent the regulation”); Buckley v. Valeo, 424 U.S. 1, 25 (1976) (campaign contribution ceiling “may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedom”); Board of Trustees v. Fox, 492 U.S. 469, 480 (1989) (commercial speech restrictions need not be “absolutely the least severe that will achieve the desired end,” but must exhibit a “ ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends—a fit that is not necessarily perfect, but reasonable . . .” (internal quotation mark and citation omitted)). But see Thompson v. Western States Medical Center, 535 U.S. 357, 371 (2002) (commercial speech restriction struck down as “more extensive than necessary to serve” the government’s interests).

552 Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (emphasis in original).

553 Erie v. Pap’s A.M., 529 U.S. 277, 291 (2000) (upholding ban on nude dancing); Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986) (upholding zoning of “adult motion picture theaters”). Zoning and nude dancing cases are discussed below under “Non-obscene But Sexually Explicit and Indecent Expression.”

554 Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298 (1984).

555 United States v. Edge Broadcasting Co., 509 U.S. 418, 430 (1993).

556 Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994) (federal “must-carry” provisions, which require cable television systems to devote a portion of their channels to the transmission of local broadcast television stations, upheld as a content-neutral, incidental restriction on speech, not subject to strict scrutiny). The Court has applied the same principle in weighing the constitutionality of two other types of speech restrictions to which it does not apply strict scrutiny: restrictions on commercial speech, Edenfield v. Fane, 507 U.S. 761, 770–771 (1993) (“a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real”), and restrictions on campaign contributions, Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 392 (2000) (“We have never accepted mere conjecture as adequate to carry a First Amendment burden”).

557 Ginsberg v. New York, 390 U.S. 629, 641 (1968) (upholding a ban on sale to minors of “girlie” magazines, and noting that, although “studies all agree that a causal link [between ‘minors’ reading and seeing ‘sexual material’ and an impairment in their ‘ethical and moral development’] has not been demonstrated, they are equally agreed that a causal link has not been disproved either,” id. at 641–42). In a case involving a federal statute that restricted “signal bleed” of sexually explicit programming on cable television, a federal district court wrote, “We recognize that the Supreme Court’s jurisprudence does not require empirical evidence. Only some minimal amount of evidence is required when sexually explicit programming and children are involved.” Playboy Entertainment Group, Inc. v. U.S., 30 F. Supp. 2d 702, 716 (D. Del. 1998), aff’d, 529 U.S. 803 (2000). In a case upholding a statute that, to shield minors from “indecent” material, limited the hours that such material may be broadcast on radio and television, a federal court of appeals wrote, “Congress does not need the testimony of psychiatrists and social scientists in order to take note of the coarsening of impressionable minds that can result from a persistent exposure to sexually explicit material. . . .” Action for Children’s Television v. FCC, 58 F.3d 654, 662 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). A dissenting opinion complained, “[t]here is not one iota of evidence in the record . . . to support the claim that exposure to indecency is harmful—indeed, the nature of the alleged ‘harm’ is never explained.” Id. at 671 (Edwards, C.J., dissenting).

558 Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 300 (2007).

559 City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 459 (2002) (Souter, J., dissenting).

560 Thus, obscenity, by definition, is outside the coverage of the First Amendment, Roth v. United States, 354 U.S. 476 (1957); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), as are malicious defamation, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and “fighting words,” Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). The Court must, of course, decide in each instance whether the questioned expression, as a matter of definition, falls within one of these or another category. See,e.g., Jenkins v. Georgia, 418 U.S. 153 (1974); Gooding v. Wilson, 405 U.S. 518 (1972).

561 E.g., the multifaceted test for determining when commercial speech is protected, Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 566 (1980); the standard for determining when expressive conduct is protected, United States v. O’Brien, 391 U.S. 367, 377 (1968); the elements going into decision with respect to access at trials, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–10 (1982); and the test for reviewing press “gag orders” in criminal trials, Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562–67 (1976), are but a few examples.

562 395 U.S. 444 (1969).

563 Yates v. United States, 354 U.S. 298 (1957); Scales v. United States, 367 U.S. 203 (1961); Noto v. United States, 367 U.S. 290 (1961). See also Bond v. Floyd, 385 U.S. 116 (1966); Watts v. United States, 394 U.S. 705 (1969).

564 395 U.S. at 447. Subsequent cases relying on Brandenburg indicate the standard has considerable bite, but do not elaborate sufficiently enough to begin filling in the outlines of the test. Hess v. Indiana, 414 U.S. 105 (1973); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982). But see Haig v. Agee, 453 U.S. 280, 308–09 (1981).

565 In Stewart v. McCoy, 537 U.S. 993 (2002), Justice Stevens, in a statement accompanying a denial of certiorari, wrote that, while Brandenburg’s “requirement that the consequence be ‘imminent’ is justified with respect to mere advocacy, the same justification does not necessarily adhere to some speech that performs a teaching function. . . . Long range planning of criminal enterprises—which may include oral advice, training exercises, and perhaps the preparation of written materials— involve speech that should not be glibly characterized as mere ‘advocacy’ and certainly may create significant public danger. Our cases have not yet considered whether, and if so to what extent, the First Amendment protects such instructional speech.” Id. at 995.