Incitement Movement from Clear and Present Danger Test

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In Gitlow v. New York,1 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 distinguished the “clear and present danger” test used in Schenck: Schenck governed “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.” 2 By contrast, in Gitlow, the Court observed that “the legislative body itself ha[d] previously determined the danger of substantive evil arising from utterances of a specified character.” 3 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.4

In Whitney v. California,5 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 on procedural grounds, which in fact disagreed with the substance of the majority opinion, Justice Louis Brandeis restated the “clear and present danger” test, saying “even 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.” 6

In Dennis v. United States,7 the Court sustained the constitutionality of the Smith Act,8 which proscribed advocacy of the overthrow by force and violence of the government of the United States, and upheld convictions under it. The plurality opinion in Dennis recognized that Whitney and Gitlow had largely been superseded by Schenck, and applied a revised version of the clear and present danger test to conclude that the evil sought to be prevented was serious enough to justify suppression of speech.9 The plurality said the phrase “clear and present danger” should not “be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case.” 10 Many of the cases in which it had previously 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.” 11

By contrast, in Dennis, the plurality reasoned that “[o]verthrow of the government by force and violence is certainly a substantial enough interest for the government to limit speech.” 12 Further, the plurality said the government did not need to wait to act until the plan was set in action.13 The Court adopted a flexible version of the “clear and present danger” test: “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.” 14 The “requisite danger” of a conspiracy was found to justify the convictions.15

The clear and present danger test was a lighter restriction on governmental power after Dennis, and it virtually disappeared from the Court’s language over the next twenty years.16 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.17 There the Court sustained a law barring the National Labor Relations Board from investigating a labor union’s petition 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.18 Chief Justice Fred Vinson, for the Court, rejected reliance on the clear and present danger test because the government’s interest in the law was “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.” 19 Instead, the Court concluded that the law did not interfere with speech—the government’s interest was “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.” 20 In evaluating the permissibility of the oath, the Court said it had to balance “the conflicting individual and national interests.” The Court further reasoned, “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.” 21 As the interest in the restriction, the government’s right to prevent political strikes and 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.22

During the 1950s and early 1960s, the Court used the balancing test in decisions that did not concern threatening expression or advocacy but rather governmental inquiries into or regulation of associations and personal beliefs premised on these being predictive of future or intended conduct that government could regulate or prohibit. Thus, in the leading case on balancing, Konigsberg v. State Bar of California,23 the Court upheld a state’s refusal to certify an applicant for admission to the bar. Describing the relevant analysis, the Court said “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.” 24

The Court used balancing to sustain congressional and state inquiries into associations and individual activities that were alleged to be subversive25 and proceedings against the Communist Party and its members.26 The Court did not use balancing, however, when it struck down restrictions on receiving materials mailed from Communist countries27 or in cases involving picketing, pamphleteering, and demonstrating in public places.28 But the only case in which the Court specifically rejected balancing involved a statutory regulation like those that had led the Court to adopt the test in the first place. In United States v. Robel,29 the Court 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.30 Writing for the Court, Chief Justice Earl Warren reasoned that the law was flawed because 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,” 31 and, as a result, 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.32 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. . . . 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.” 33

The government used the Smith Act provision criminalizing organizing or becoming a member of an organization that teaches, advocates, or encourages the overthrow of government by force or violence against Communist Party members. In Scales v. United States,34 the Court affirmed a conviction and held it constitutional against First Amendment attack. Advocacy such as the Communist Party engaged in, Justice John Harlan wrote for the Court, was unprotected under Dennis, and he could see no reason why membership that constituted a purposeful form of complicity in a group engaging in such advocacy should be a protected form of association. Of course, he observed “[i]f there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but the membership clause . . . does not make criminal all association with an organization which has been shown to engage in illegal advocacy.” 35 Only an “active” member of the Party—one who with knowledge of the proscribed advocacy intends to accomplish the aims of the organization—was to be punished, the Court said, not a “nominal, passive, inactive or purely technical” member.36

1: 268 U.S. 652 (1925).
2: Id. at 670–71.
3: 268 U.S. at 671.
4: 268 U.S. at 668. Justice Oliver Wendell 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.
5: 274 U.S. 357, 371 (1927), overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969).
6: 274 U.S. at 376.
7: 341 U.S. 494 (1951).
8: 54 Stat. 670 (1940), 18 U.S.C. § 2385.
9: Dennis, 341 U.S. at 507–09, 517.
10: Id. at 508.
11: 341 U.S. at 508.
12: 341 U.S. at 509.
13: 341 U.S. at 508, 509.
14: 341 U.S. at 510 (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950). Justice Felix Frankfurter, concurring, adopted a balancing test. Id. at 517. Justice Robert Jackson appeared to proceed on a conspiracy approach rather than one depending on advocacy. Id. at 561. Justices Hugo Black and William O. 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.
15: Dennis, 341 U.S. at 510–11. In Yates v. United States, 354 U.S. 298 (1957), the Court discussed its constitutional jurisprudence while interpreting the Smith 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.
16: 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) (Harlan, J., concurring).
17: 339 U.S. 382 (1950). See also Osman v. Douds, 339 U.S. 846 (1950). Balancing language was used by Justice Hugo 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 Owen Roberts used balancing language that he apparently did not apply.
18: 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).
19: Id. at 396.
20: Id. For additional discussion of Douds and other cases involving loyalty oaths impinging on associational freedom, see Amdt1.8.2.3 Denial of Employment or Public Benefits.
21: 339 U.S. at 399, 410.
22: 339 U.S. at 400–06.
23: 366 U.S. 36 (1961).
24: 366 U.S. at 50–51. Again, the ruling in Konigsberg is discussed in more detail in Amdt1.8.2.3 Denial of Employment or Public Benefits.
25: 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).
26: Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961); Scales v. United States, 367 U.S. 203 (1961).
27: Lamont v. Postmaster General, 381 U.S. 301 (1965).
28: 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.
29: 389 U.S. 258 (1967).
30: Subversive Activities Control Act of 1950, § 5(a)(1)(D), 64 Stat. 992, 50 U.S.C. § 784 (a)(1)(D).
31: United States v. Robel, 389 U.S. 258, 265 (1967).
32: 389 U.S. at 265–68.
33: 389 U.S. at 268 n.20.
34: 367 U.S. 203 (1961). Justices Hugo Black and William O. Douglas dissented on First Amendment grounds, id. at 259, 262, while Justice William Brennan and Chief Justice Warren dissented on statutory grounds. Id. at 278.
35: 367 U.S. at 229.
36: 367 U.S. at 220. In Noto v. United States, 367 U.S. 290 (1961), the Court reversed a conviction under the membership clause because the evidence was insufficient to prove that the Party had engaged in unlawful advocacy. “[T]he mere abstract teaching of Communist theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. There must be some substantial direct or circumstantial evidence of a call to violence now or in the future which is both sufficiently strong and sufficiently pervasive to lend color to the otherwise ambiguous theoretical material regarding Communist Party teaching, and to justify the inference that such a call to violence may fairly be imputed to the Party as a whole, and not merely to some narrow segment of it.” Id. at 297–98.