The Constitution of the United States of America: Analysis and Interpretation Part 143

In such cases, the evils feared by the legislature usually arise, not out of the substance of the communications, but from the manner in which they are made. Applying the test of clear and present danger in Thornhill _v._ Alabama[118] and Carlson v. California,[119] the Court invalidated laws against peaceful picketing, including the carrying of signs and banners. It held that: "the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Const.i.tution" and may be abridged only where "the clear danger of substantive evils arises under circ.u.mstances affording no opportunity to test the merits of ideas by compet.i.tion for acceptance in the market of public opinion."[120]

Shortly thereafter a divided Court ruled that peaceful picketing may be enjoined where the labor dispute has been attended by violence on a serious scale.[121] Speaking for the majority on this occasion, Justice Frankfurter a.s.serted that "utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force * * * (and) was not meant to be sheltered by the Const.i.tution."[122]

For a brief period strangers to the employer were accorded an almost equal freedom of communication by means of picketing.[123] Subsequent cases, however, have recognized that "while picketing has an ingredient of communication it cannot dogmatically be equated with the const.i.tutionally protected freedom of speech."[124] Without dissent the Court has held that a State may enjoin picketing designed to coerce the employer to violate State law by refusing to sell ice to nonunion peddlers,[125] by interfering with the right of his employees to decide whether or not to join a union,[126] or by choosing a specified proportion of his employees from one race, irrespective of merit.[127]

By close divisions, it also sustained the right of a State to forbid the "conscription of neutrals" by the picketing of a restaurant solely because the owner had contracted for the erection of a building (not connected with the restaurant and located some distance away) by a contractor who employed nonunion men;[128] or the picketing of a shop operated by the owner without employees to induce him to observe certain closing hours.[129] In this last case Justice Black distinguished Thornhill _v._ Alabama and other prior cases by saying, "No opinions relied on by pet.i.tioners a.s.sert a const.i.tutional right in picketers to take advantage of speech or press to violate valid laws designed to protect important interests of society * * * it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.

* * * Such an expansive interpretation of the const.i.tutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society."[130] By the same token, a State anti-closed shop law does not infringe freedom of speech, of a.s.sembly or of pet.i.tion;[131] neither does a "cease and desist" order of a State Labor Relations Board directed against work stoppages caused by the calling of special union meetings during working hours.[132] But, by a vote of five Justices to four--the five, however, being unable to agree altogether among themselves--a State may not require labor organizers to register,[133] although, as Justice Roberts pointed out for the dissenters, "other paid organizers, whether for business or for charity could be required thus to identify themselves."[134]

CONTEMPT OF COURT AND CLEAR AND PRESENT DANGER

One area in which the clear and present danger rule has undoubtedly enlarged freedom of utterance beyond common law limits is that of discussion of judicial proceedings. In 1907 the Supreme Court speaking by Justice Holmes refused to review the conviction of an editor for contempt of court in publis.h.i.+ng articles and cartoons criticizing the action of the court in a pending case.[135] It took the position that even if freedom of the press was protected against abridgment by the State, a publication tending to obstruct the administration of justice was punishable, irrespective of its truth. In recent years the Court not only has taken jurisdiction of cases of this order but has scrutinized the facts with great care and has not hesitated to reverse the action of State courts. Bridges _v._ California[136] is the leading case.

Enlarging upon the idea that clear and present danger is an appropriate guide in determining whether comment on pending cases can be punished, Justice Black said: "We cannot start with the a.s.sumption that publications of the kind here involved actually do threaten to change the nature of legal trials, and that to preserve judicial impartiality, it is necessary for judges to have a contempt power by which they can close all channels of public expression to all matters which touch upon pending cases. We must therefore turn to the particular utterances here in question and the circ.u.mstances of their publication to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify summary punishment."[137] Speaking on behalf of four dissenting members, Justice Frankfurter objected: "A trial is not a 'free trade in ideas,' nor is the best test of truth in a courtroom 'the power of the thought to get itself accepted in the compet.i.tion of the market.' * * * We cannot read into the Fourteenth Amendment the freedom of speech and of the press protected by the First Amendment and at the same time read out age-old means employed by states for securing the calm course of justice. The Fourteenth Amendment does not forbid a state to continue the historic process of prohibiting expressions calculated to subvert a specific exercise of judicial power. So to a.s.sure the impartial accomplishment of justice is not an abridgment of freedom of speech or freedom of the press, as these phases of liberty have heretofore been conceived even by the stoutest libertarians. In act, these liberties themselves depend upon an untrammeled judiciary whose pa.s.sions are not even unconsciously aroused and whose minds are not distorted by extrajudicial considerations."[138] In Pennekamp _v._ Florida,[139] a unanimous Court held that criticism of judicial action already taken, although the cases were still pending on other points, did not create a danger to fair judicial administration of the "clearness and immediacy necessary to close the doors of permissible public comment"[140] even though the State court held and the Supreme Court a.s.sumed that "the pet.i.tioners deliberately distorted the facts to abase and destroy the efficiency of the court."[141] And in Craig _v._ Harney,[142] a divided Court held that publication, while a motion for a new trial was pending, of an unfair report of the facts of a civil case, accompanied by intemperate criticism of the judge's conduct was protected by the Const.i.tution. Said Justice Douglas, speaking for the majority: "The vehemence of the language used is not alone the measure of the power to publish for contempt. The fires which it kindles must const.i.tute 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."[143]

FREEDOM OF SPEECH AND PRESS IN PUBLIC PARKS AND STREETS

Notable also is the protection which the Court has erected in recent years for those who desire to use the streets and the public parks as theatres of discussion, agitation, and propaganda dissemination. In 1897 the Court unanimously sustained an ordinance of the city of Boston which provided that "no person shall, in or upon any of the public grounds, make any public address," etc., "except in accordance with a permit of the Mayor,"[144] quoting with approval the following language from the decision of the Ma.s.sachusetts Supreme Judicial Court in the same case.

"For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in the house. When no proprietary right interferes the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the less step of limiting the public use to certain purposes."[145]

Forty-two years later this case was distinguished in Hague _v._ C.I.O.[146] (_See_ p. 808.) And in 1948 in Saia _v._ New York[147] an ordinance forbidding the use of sound amplification devices by which sound is cast directly upon the streets and public places, except with permission of the chief of police, for the exercise of whose discretion no standards were prescribed, was held unconst.i.tutional as applied to one seeking leave to amplify religious lectures in a public park. The decision was a five-to-four holding; and eight months later a majority, comprising the former dissenters and the Chief Justice, held it to be a permissible exercise of legislative discretion to bar sound trucks, with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of a munic.i.p.ality.[148] Conversely, it was within the power of the Public Utilities Commission of the District of Columbia, following a hearing and investigation, to issue an order permitting the Capital Transit Company, despite the protest of some of its patrons, to receive and amplify on its street cars and buses radio programs consisting generally of 90% music, 5% announcements, and 5% commercial advertising. Neither operation of the radio service nor the action of the Commission permitting it was precluded by the First and Fifth Amendments.[149]

Under still unoverruled decisions an ordinance forbidding any distribution of circulars, handbills, advertising, or literature of any kind within the city limits without permission of the City Manager is an unlawful abridgment of freedom of the press.[150] So also are ordinances which forbid, without exception, any distributions of handbills upon the streets.[151] Even where such distribution involves a trespa.s.s upon private property in a company owned town,[152] or upon Government property in a defense housing development,[153] it cannot be stopped.

The pa.s.sing out of handbills containing commercial advertising may, however, be prohibited; this is true even where such handbills may contain some matter which, standing alone would be immune from the restriction.[154] A munic.i.p.al ordinance forbidding any person to ring door bells, or otherwise summon to the door the occupants of any residence, for the purpose of distributing to them circulars or handbills was held to infringe freedom of speech and of the press as applied to a person distributing advertis.e.m.e.nts of a religious meeting.[155] But an ordinance forbidding door to door peddling or canva.s.sing unless it is invited or requested by the occupant of a private residence is valid.[156]

CENSORs.h.i.+P

Freedom from previous restraints has never been regarded as absolute.

The principle that words having the quality of verbal acts might be enjoined by court order was established in Gompers _v._ Bucks Stove and Range Co.;[157] and in Near _v._ Minnesota[158] the Court, speaking through Chief Justice Hughes, even while extending Blackstone's condemnation of censors.h.i.+p to a statute which authorized the enjoining of publications alleged to be persistently defamatory, criticized it as being in some respects too sweeping. Indeed, the distinction between prevention and punishment appears to have played little or no part in determining when picketing may be forbidden in labor disputes.[159] In Chaplinsky _v._ New Hamps.h.i.+re[160] and Board of Education _v._ Barnette,[161] the opinions indicated that the power of Government is measured by the same principles in both situations. In the former Justice Murphy a.s.serted: "There are certain well-defined and narrowly limited cla.s.ses of speech, the prevention and punishment of which have never been thought to raise any const.i.tutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."[162] To like effect, in Board of Education _v._ Barnette, Justice Jackson set it down as "a commonplace that censors.h.i.+p or suppression of expression of opinion is tolerated by our Const.i.tution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish."[163]

It is significant that the cases which have sanctioned previous restraints upon the utterances of particular persons have involved restraint by judicial, not administrative action. The prime objective of the ban on previous restraints was to outlaw censors.h.i.+p accomplished by licensing. "The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his a.s.sault by his 'Appeal for the Liberty of Unlicensed Printing.' And the liberty of the press became initially a right to publish '_without_ a license what formerly could be published only _with one_'."[164] Even today, a licensing requirement will bring judicial condemnation more surely than any other form of restriction.

Except where the authority of the licensing officer is so closely limited as to leave no room for discrimination against utterances he does not approve,[165] the Supreme Court has struck down licensing ordinances, even in respect of a form of communication which may be prohibited entirely.[166] In the case of radio broadcasting, however, where physical limitations make it impossible for everyone to utilize the medium of communication, the Court has thus far sanctioned a power of selective licensing;[167] while with respect to moving pictures it has until very recently held the States' power to license, and hence to censor, films intended for local exhibition to be substantially unrestricted, this being "a business pure and simple, originated and conducted for profit," and "not to be regarded, ... as part of the press of the country or as organs of public opinion."[168] This doctrine was laid down in 1915, but in 1948, in speaking for the Court, in United States _v._ Paramount Pictures,[169] Justice Douglas indicated a very different position, saying: "We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment."[170] In the so-called "Miracle Case,"[171] in which it was held that under the First and Fourteenth Amendments, a State may not place a prior restraint on the showing of a motion picture film on the basis of the censor's finding that it is "sacrilegious," a word of uncertain connotation, this point of view becomes the doctrine of the Court and the Mutual Films Case is p.r.o.nounced "overruled" so far as it is out of harmony with the instant holding.[172]

THE CLEAR AND PRESENT DANGER TEST: JUDICIAL DIVERSITIES

In the course of decisions enforcing this test of state action with respect to freedom of speech and press, diversity of opinion has appeared among the Justices upon three closely related topics: first, as to the restrictive force of the test; second, as to the const.i.tutional status of freedom of speech and press; third, as to the kind of speech which the Const.i.tution is concerned to protect. On the first point the following pa.s.sage from Justice Black's opinion in Bridges _v._ California[173] is pertinent: "What finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost const.i.tutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law 'abridging the freedom of speech or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow."[174] With this should be compared the following words from Justice Frankfurter's concurring opinion in Pennekamp _v._ Florida,[175] which involved a closely similar issue to the one dealt with in the Bridges Case: "'Clear and present danger' was never used by Mr. Justice Holmes to express a technical legal doctrine or to convey a formula for adjudicating cases.

It was a literary phrase not to be distorted by being taken from its context. In its setting it served to indicate the importance of freedom of speech to a free society but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Const.i.tution. When those other attributes of a democracy are threatened by speech, the Const.i.tution does not deny power to the states to curb it."[176]

The second question, in more definite terms, is whether freedom of speech and press occupies a "preferred position" in the const.i.tutional hierarchy of values so that legislation restrictive of it is presumptively unconst.i.tutional. An important contribution to the affirmative view on this point is the following pa.s.sage from an opinion of Justice Cardozo written in 1937: "One may say that it is the matrix, the indispensable condition, of nearly every other form of freedom.

* * * So it has come about that the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. The extension became, indeed, a logical imperative when once it was recognized, as long ago it was, that liberty is something more than exemption from physical restraint, and that even in the field of substantive rights and duties the legislative judgment, if oppressive and arbitrary, may be overridden by the courts."[177]

Touching on the same subject a few months later, Chief Justice Stone suggested that: "There may be narrower scope for operation of the presumption of const.i.tutionality when legislation appears on its face to be within a specific prohibition of the Const.i.tution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth." And again: "It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation."[178] But the strongest a.s.sertion of this position occurs in Justice Rutledge's opinion for a sharply divided Court in Thomas _v._ Collins.[179] He says: "The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so 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 sanct.i.ty and a sanction not permitting dubious intrusions.

And it is the character of the right, not of the limitation, which determines what standard governs the choice. * * * For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. It is therefore in our tradition to allow the widest room for discussion, the narrowest range for its restriction, particularly when this right is exercised in conjunction with peaceable a.s.sembly. It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to a.s.semble and to pet.i.tion for redress of grievances. All these, though not identical, are inseparable. They are cognate rights."[180] This was 1945. Four years later the controlling wing of the Court, in sustaining a local ordinance, endorsed a considerably less enthusiastic appraisal of freedom of speech and press. Thus while alluding to "the preferred position of freedom of speech in a society that cherishes liberty for all," Justice Reed went on to say, that this "does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself."[181] And Justice Frankfurter denied flatly the propriety of the phrase "preferred position," saying: "This is a phrase that has uncritically crept into some recent opinions of this Court. I deem it a mischievous phrase, if it carries the thought, which it may subtly imply, that any law touching communication is infected with presumptive invalidity. It is not the first time in the history of const.i.tutional adjudication that such a doctrinaire att.i.tude has disregarded the admonition most to be observed in exercising the Court's reviewing power over legislation, 'that it is a const.i.tution we are expounding,'

M'Culloch _v._ Maryland, 4 Wheat. 316, 407. I say the phrase is mischievous because it radiates a const.i.tutional doctrine without avowing it. Clarity and candor in these matters, so as to avoid gliding unwittingly into error, make it appropriate to trace the history of the phrase 'preferred position.'"[182] which Justice Frankfurter then proceeded to do. Justice Jackson also protested: "We cannot," he said, "give some const.i.tutional rights a preferred position without relegating others to a deferred position."[183]

The third question concerns the quality and purpose of the speech which the Const.i.tution aims to protect. In 1949, Justice Douglas speaking for a divided Court returned the following robustious answer to this question: "* * * a function of free speech under our system of government 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, Chaplinsky _v._ New Hamps.h.i.+re, supra, pp. 571-572, is nevertheless protected against censors.h.i.+p 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."[184] But early in 1951 Justice Jackson, in a dissenting opinion, urges the Court to review its entire position in the light of the proposition that "the purpose of const.i.tutional protection of freedom of speech is to foster peaceful interchange of all manner of thoughts, information and ideas," that "its policy is rooted in faith of the force of reason."[185] He considers that the Court has been striking "rather blindly at permit systems which indirectly may affect First Amendment freedom." He says: "Cities throughout the country have adopted the permit requirement to control private activities on public streets and for other purposes. The universality of this type of regulation demonstrates a need and indicates widespread opinion in the profession that it is not necessarily incompatible with our const.i.tutional freedoms. Is everybody out of step but this Court? * * * It seems hypercritical to strike down local laws on their faces for want of standards when we have no standards. And I do not find it required by existing authority. I think that where speech is outside of const.i.tutional immunity the local community or the State is left a large measure of discretion as to the means for dealing with it."[186] This diversity of viewpoint on the Court touching the above questions became of importance when, recently, the Court was faced with the problem of the relation of freedom of speech to the enumerated powers of the National Government, in contrast to the indefinite residual powers of the States.

TAXATION

The Supreme Court, citing the fact that the American Revolution "really began when * * * that government (of England) sent stamps for newspaper duties to the American colonies" has been alert to the possible uses of taxation as a method of suppressing objectionable publications.[187]

Persons engaged in the dissemination of ideas are, to be sure, subject to ordinary forms of taxation in like manner as other persons.[188] With respect to license or privilege taxes, however, they stand on a different footing. Their privilege is granted by the Const.i.tution and cannot be withheld by either State or Federal Government. Hence a license tax measured by gross receipts for the privilege of engaging in the business of publis.h.i.+ng advertising in any newspaper or other publication was held invalid[189] and flat license fees levied and collected as a pre-condition to the sale of religious books and pamphlets have also been set side.[190]

FEDERAL RESTRAINTS ON FREEDOM OF SPEECH AND PRESS

Regulations of Business and Labor Activities

The application to newspapers of the Anti-Trust Laws,[191] the National Labor Relations Act,[192] or the Fair Labor Standards Act,[193] does not abridge the freedom of the press. In Gompers _v._ Bucks Stove and Range Co.,[194] the Supreme Court unanimously held that a court of equity may enjoin continuance of a boycott, despite the fact that spoken or written speech was used as an instrumentality by which the boycott was made effective. "In the case of an unlawful conspiracy, the agreement to act in concert when the signal is published gives the words 'Unfair,' 'We Don't Patronize,' or similar expressions, a force not inhering in the words themselves, and therefore exceeding any possible right of speech which a single individual might have. Under such circ.u.mstances they become what have been called 'verbal acts,' and as much subject to injunction as the use of any other force whereby property is unlawfully damaged."[195] A cognate test has been applied in determining when communications by an employer const.i.tute an unfair labor practice which may be forbidden or penalized under the National Labor Relations Act without infringing freedom of speech. In Labor Board _v._ Virginia Power Co.,[196] the Court held that the sanctions of the act might be imposed upon an employer for the protection of his employees, where his conduct "though evidenced in part by speech, * * * (amounted) to coercion within the meaning of the act."[197] In the opinion of the Court, Justice Murphy stated, "The mere fact that language merges into a course of conduct does not put that whole course without the range of otherwise applicable administrative power. In determining whether the Company actually interfered with, restrained, and coerced its employees, the Board has a right to look at what the Company has said, as well as what it has done."[198] But the const.i.tutionality of legislation prohibiting the publication by corporations and unions in the regular course of conducting their affairs of periodicals advising their members, stockholders or customers of danger or advantage to their interest from the adoption of measures or the election to office of men espousing such measures has been declared by the Court to be open to gravest doubt.[199]

REGULATION OF POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES

The leading case touching this subject is Ex parte Curtis, decided seventy years ago.[200] Here was sustained an act of Congress which prohibited, under penalties, certain categories of officers of the United States from requesting, giving to, or receiving from, any other officer, money or property or other thing of value for political purposes.[201] Two generations later was enacted the so-called Hatch Act[202] which, while making some concessions to freedom of expression on matters political by employees of the government, forbids their active partic.i.p.ation in political management and political campaigns.

The act was sustained against objections based on the Bill of Rights;[203] while an amendment to it the effect of which is to diminish the amount of a federal grant-in-aid of the construction of highways in a State which fails to remove from office "one found by the United States Civil Service Commission to have taken active part in political management or in political campaigns while a member of the state highway commission," was held not to violate Amendment X.[204]

LEGISLATION PROTECTIVE OF THE ARMED FORCES AND OF THE WAR POWER

The Federal Government may punish utterances which obstruct its recruiting or enlistment service, cause insubordination in the armed forces, encourage resistance to government in the prosecution of war, or impede the production of munitions and other essential war material.[205] The only issue which has divided the Court with regard to such speech has been the degree of danger which must exist before it may be punished. The recent decision in Dennis _v._ United States diminishes, if it does not eliminate, this issue.[206]

LOYALTY REGULATIONS: THE DOUDS CASES

"Section 9 (h) of the Labor Management Relations Act requires, as a condition of a union's utilizing the opportunities afforded by the act, each of its officers to file an affidavit with the National Labor Relations Board (1) that he is not a member of the Communist Party or affiliated with such party, and (2) that he does not believe in, and is not a member of or supports any organization that believes in or teaches the overthrow of the United States Government by force or by any illegal or unconst.i.tutional methods." The statute also makes it a criminal offense to make willfully or knowingly any false statement in such an affidavit.[207] In American Communications a.s.sociation, C.I.O. et al.

_v._ Douds[208] five of the six Justices partic.i.p.ating sustained the requirement (1) and three Justices sustained the requirement (2) against the objection that the act exceeded Congress's power over interstate commerce and infringed freedom of speech and the rights of pet.i.tion and a.s.sembly; and in Osman _v._ Douds[209] the same result was reached by a Court in which only Justice Clark did not partic.i.p.ate. In the end only Justice Black condemned requirement (1), while the Court was evenly divided as to requirement (2). In the course of his opinion for the controlling wing of the Court, Chief Justice Vinson said: "The attempt to apply the term, 'clear and present danger,' as a mechanical test in every case touching First Amendment freedoms, without regard to the context of its application, mistakes the form in which an idea was cast for the substance of the idea * * * the question with which we are here faced is not the same one that Justices Holmes and Brandeis found convenient to consider in terms of clear and present danger.

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. * * * The contention of pet.i.tioner * * *

that this Court must find that political strikes create a clear and present danger to the security of the Nation or of widespread industrial strife in order to sustain -- 9 (h) similarly misconceives the purpose that phrase was intended to serve. In that view, not the relative certainty that evil conduct will result from speech in the immediate future, but the extent and gravity of the substantive evil must be measured by the 'test' laid down in the _Schenck Case_."[210] In thus balancing the gravity of the interest protected by legislation from harmful speech against the demands of the clear and present danger rule the Court paved the way for its decision a year later in Dennis _v._ United States.

THE CASE OF THE ELEVEN COMMUNISTS

Dennis _v._ United States[211] involves the following legislation:

"Section 2. (a) It shall be unlawful for any person--

"(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the a.s.sa.s.sination of any officer of any such government;

"(2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence;

"(3) to organize or help to organize any society, group, or a.s.sembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or a.s.sembly of persons, knowing the purposes thereof.

"(b) For the purposes of this section, the term 'government in the United States' means the Government of the United States, the government of any State, Territory, or possession of the United States, the government of the District of Columbia, or the government of any political subdivision of any of them."[212]

The trial court had ruled that clause (2) of the act qualified both the other clauses; and this construction was endorsed by the Supreme Court.

The judgment of the Court sustaining the convictions against objections raised under Amendment I was supported by three different opinions.

Chief Justice Vinson, speaking also for Justices Reed, Burton and Minton emphasized the substantial character of the Government's interest in preventing its own overthrow by force. "Indeed," said he, "this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected."[213] The opinion continues: "If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase 'clear and present danger'

of the utterances bringing about the evil within the power of Congress to punish. Obviously, the words cannot mean that before the Government may act, it must wait until the _putsch_ is about to be executed, the plans have been laid and the signal is awaited. 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 circ.u.mstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success or the immediacy of a successful attempt."[214] The Chief Justice concluded this part of his opinion by quoting from Chief Judge Learned Hand's opinion for the Circuit Court of Appeals in the same case, 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.'"[215] In short, if the evil legislated against is serious enough, advocacy of it in order to be punishable does not have to be attended by a clear and present danger of success.

But at this point the Chief Justice appears to recoil from this abrupt dismissal of the clear and present danger formula for the more serious cases, and he makes a last moment effort to rescue the babe that he has tossed out with the bathwater. He says: "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. Likewise, we are in accord with the court below, which affirmed the trial court's finding that the requisite danger existed. The mere fact that from the period 1945 to 1948 pet.i.tioners' activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by pet.i.tioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these pet.i.tioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom pet.i.tioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. And this a.n.a.lysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be const.i.tutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger."[216] His final position seems to be that, after all, the question is one for judicial discretion. "When facts are found that establish the violation of a statute, the protection against conviction afforded by the First Amendment is a matter of law. The doctrine that there must be a clear and present danger of a substantive evil that Congress has a right to prevent is a judicial rule to be applied as a matter of law by the courts."[217]