Justice Brandeis’s concurring opinion in Whitney v. California encapsulates the four traditional rationales for protecting freedom of speech:

“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 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. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” Whitney, 274 U.S. 357, 375 (1927).

Justice Brandeis’s quote above captures what have been thought to be the four traditional constitutional values that are advanced by protecting freedom of speech: promoting democratic self-governance by ensuring the greatest amount of information and the broadest range of views are permitted in the public domain; promoting the search for truth through the operation of the “marketplace of ideas” rather than government regulation; advancing individual autonomy by protecting our ability to express ideas—whether political, artistic, ideological, etc.—without fear of punishment; providing a “safety valve” for individuals to express their dissatisfaction or anger by speech rather than turning to other means because their speech is suppressed.  

A fifth rationale that I [Lyles] want you to consider is  promoting societal tolerance—i.e., freedom of speech requires people to learn to tolerate ideas that they may not like, which builds habits of mind that in turn lead to greater tolerance of people whom they may not like.

All of these rationales are subject to elaboration, examination, and criticism, and we will discuss them throughout the second half of PolS 354.

Summary of lecture notes (lyles, PP slides)

• [1] “clear and present danger” test
• [2] “Legislative reasonableness”  and/or “bad tendency” test
• [3] “preferred-position” test
• [4] “void-for-vagueness” test
• [5]“fighting words” test
• [6]“gravity of evil” test
• [7]”overbreadth” and [8]”least means“ tests
• [9] the “incitement to imminent lawless action” test
• [10+] “obscenity” has several tests

Excerpt from Lyles, et. al., Civil Liberties and the Constitution: Cases and Commentaries, 9th edition, 2011, pp. 35-37

Core principles, Subversive Advocacy, and Clear and Present Danger

Featured Cases

Schenck v. United States; Abrams v. United States; Gitlow v. New York; Whitney v. California; Dennis v. United States; Brandenburg v. Ohio

 “The question in every case,” said Justice Holmes for a unanimous Court in Schenck v. United States (249 U.S. 47, 1919), “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.” In the attempt to decide what constitutes such danger, the Court began to wrestle with speech at its core—speech against the government. Democratic governments clearly have the responsibility of self-preservation. Revolutions ultimately may be desirable, but revolutions by their very nature are not governed by constitutional processes. The early subversive advocacy cases have become the classic free-speech cases. They began in World War I and continued in the years immediately following World War II, when relations between the United States and the Soviet Union deteriorated to the point of a cold war impasse. The question in these cases was not whether subversive actions can be prevented. Rather, it was whether speech advocating unlawful actions can be punished.

Holmes formulated the clear-and-present-danger test. Soon, however, he came to disagree with the way that his own test was being applied to specific cases. As the subversive advocacy cases progressed, he and Louis Brandeis wrote their famous dissents. They thought that the Court found danger too easily when serious threats were not really present. Nevertheless, fear in society grew, and the government responded by punishing speech. People were found guilty of subversive advocacy and imprisoned for acts ranging from passing out antiwar leaflets to attending certain meetings. Even a Presidential candidate was imprisoned for a speech that he gave. After World War II, suspicion mounted that an international Communist conspiracy seeking world domination was being actively supported by Communists living within the United States. These suspicions were stirred into a kind of widespread public hysteria as some politicians, most notably Senator Joe McCarthy (R-WI), charged that Communists were occupying positions in government and had infiltrated the military–industrial complex. Stung by Republican charges of official lack of attention to and toleration of Communists in such vital places, the Democratic Party realized that being tagged with a “soft on Communism” label could be very damaging in the forthcoming general elections. Hence, in 1948 the Justice Department moved to enforce the Smith Act against the American Communist Party, in which eleven of the group’s leaders were indicted on charges of willfully and knowingly (1) conspiring to organize the Communist Party, a group of persons who teach and advocate the overthrow of the government by force and violence; and (2) advocating and teaching the duty and necessity of overthrowing the government by force and violence.

After a marathon trial lasting nine months, the Communist leaders were found guilty as charged. Subsequently, their convictions were affirmed by both the Court of Appeals for the Second Circuit and the Supreme Court in Dennis v. United States (infra). Both courts found that the act, on its face and as applied, did not cut too deeply into constitutional guarantees. Chief Justice Fred Vinson, writing the leading opinion for the Supreme Court, purported to use the clear-and-present-danger test, but in order to determine clear and present danger he adopted reasoning that was applied in the Court of Appeals by Judge Learned Hand. To Judge Hand, the crucial question was “whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” The Chief Justice reasoned that since the government’s very existence was at stake, the clear-and-present-danger test did not mean that the government could not act until the “putsch was about to be executed.” Knowledge of the existence of a group aiming to overthrow the government “as speedily as circumstances would permit” was deemed sufficient to justify restrictive governmental action.

The dissenters sharply disagreed with Chief Justice Vinson and criticized, among other things, what they considered his tortured construction of the clear-and-present-danger test. Even those who concurred with the Court’s decision questioned the wisdom of using “clear and present danger” in a case like Dennis and suggested what they considered to be more appropriate standards by which to uphold the conviction of the Communist leaders.

Smith Act prosecutions eventually came to a close. The chief protagonists, such as Joe McCarthy, had died, and the Court began to make it much harder to convict. In Yates v. United States (354 U.S. 298, 1957) the Court effectively put an end to conviction for advocacy under the Smith Act. The opinion was based on statutory interpretation, but it was written in a way that warned of Constitutional difficulties. Writing for the Court, Justice Harlan said

[We reject the proposition that] mere doctrinal justification of forcible overthrow, if engaged in with the intent to accomplish overthrow is punishable [under] the Smith Act. [In trying to distinguish Yates from Dennis] [The] essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.

            Many urged abandoning clear and present danger as a test. Justices Douglas, Black, and others argued that it had so often been interpreted to restrict speech improperly that it should be buried. The modern test governing advocacy comes from a case involving the Ku Klux Klan. In Brandenburg v. Ohio, the Court asserted there must be “incitement to imminent lawless action.” The Court did not mention the clear-and-present-danger test. Neither did itdisavow it, and conceivably the new standard is seen simply as the way to assess clear and present danger. On the other hand, to have ignored the words “clear and present danger” in Brandenburg surely was not simply an oversight, so many people believe that it has been replaced by “incitement to imminent lawless action.” Like all tests, this one has its problems. What constitutes incitement? Recall the funeral oration of Caesar. “Friends, Romans, countrymen, lend me your ears; I come to bury Caesar, not to praise him.” Mark Antony’s speech serves as a classic literary example of incitement, even while it claims to do otherwise. Or, assume that a boring speaker and an electrifying speaker use the exact same words. Should the protection of speech turn on the eloquence of the speaker? The intent of the speaker? The reaction of the crowd? The new test solves some problems, but it raises others.

The rocky road traveled by the clear and present danger test (Cf. Landmark Communication, Inc. v. Virginia, 435 U.S. 829, 1978) illustrates the fact that judges rather than tests or doctrines decide cases. It becomes quite clear that no matter what test or doctrine is used, or even whether one is used at all, individual judges invariably weigh or balance a number of factors and interests in reaching their decisions. It may well be that social circumstances and prevailing political forces set the terms of First Amendment jurisprudence. Worldwide communism is no longer seen as a threat, but it takes little imagination to see that fear of terrorism could become its modern counterpart. The threats may be essentially the same or they may be fundamentally different, but there is little doubt that many of the debates thought to have been resolved in an earlier era will resurface.