Balancing and the definitional tradition

From its very beginnings, the debate over balancing in American consti­tutional jurisprudence has been understood by participants as a dispute between balancing and alternatives.

This section shows how for every ‘episode' in the genealogy of free speech balancing discussed earlier, from ‘clear and present danger' through to the communism cases of the 1950s and 1960s, a correspond­ing alternative from within this definitional tradition was available. Balancing's local meaning, I will argue, has to be seen at least partly as a function of its perennial contest with these alternatives.

1. An ‘absolute and objective test': Learned Hand's opinion in Masses Publishing Co. v. Patten (1917)

Earlier, this chapter presented the genesis of the clear-and-present- danger test in the Supreme Court's early post-First World War case law as an important precursor to the Court's later balancing cases. In that same earlier period, an alternative test to ‘clear and present danger' was discussed among judges and scholars. This alternative was Judge Learned Hand's test in the case of Masses Publishing Co. v. Patten.^[772] The Masses case was one of the first judicial decisions to examine the Espionage Act of 1917, the Act at issue also in Schenck and Abrams (both 1919). At the time, as Gerald Gunther has written, according to prevalent thinking on the first amendment, ‘the punishability of speech turned on an evaluation of its likelihood to cause forbidden consequences'.^[773] Holmes' and Brandeis' clear-and-present-danger test was, as its name indicates, at heart an application of this line of rea­soning, turning on an assessment of the probable immediate conse­quences of expression.

Instead of asking in the circumstances of each case whether the words had a tendency or even a probability of producing unlawful conduct, he sought a more ‘absolute and objective test' focusing on ‘language' - ‘a qualitative formula, hard, conventional, difficult to evade' as he said in his letters. What he urged was essentially an incitement test, ‘a test based upon the nature of the utterance itself': [only] if the words constituted solely a counsel to law violation, they could be forbidden.^[777]

The vocabulary chosen by Learned Hand to describe his test - qualita­tive, absolute, objective - is, of course, the vocabulary of legal formality. These terms are invoked in direct opposition to the vocabulary of bal­ancing: quantitative, relative, and, at least in the eyes of its critics, sub­jective and personal. Learned Hand's preferred solution is a ‘largely definitional' model; an interpretation and classification of the ‘nature of the utterance' concerned, which eschews analysis of ‘case circumstances' and of the ‘probability of consequences'.^[778] A brilliant passage from one of Learned Hand's letters to Zechariah Chafee, in which he discussed Justice Holmes' clear-and-present-danger test, presents the intended contrast in stark form:

I am not wholly in love with Holmesy's test and the reason is this.

All of this, it is worth emphasizing, was written before balancing itself became a significant first amendment theme, or even before the clear- and-present-danger test had come to be seen as a balancing test.^[780] And yet all the characterizations and oppositions familiar from the later bal­ancing debates are already in evidence. ‘Clear and present danger' is too much a matter of ‘degree', giving too much discretion (‘latitude') to judges and juries. Not surprisingly, the spectre of formalism and ‘mech­anical jurisprudence', familiar from Pound's writing and from the later balancing debates, is also present. Learned Hand's references to the ‘char­acter' and the ‘nature' of utterances have a distinct essentialist under­tone. The Judge himself was concerned to make clear that his distinction between direct incitement to illegal action and ‘legitimate agitation' was ‘not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom'.^[781] To the extent, however, that Learned Hand's approach was an ‘all or nothing proposition' that failed to ‘adjust the [...] meaning of words to the context of their utterance',^[782] a charge of formalism and mechanical reasoning could easily be made.

As it was, Learned Hand's contribution in the Masses case was ‘oblit­erated' by the ascendancy of the clear-and-present-danger test set out in Schenck and Abrams and as interpreted by Chafee and others.^[783] But the difference between the Holmes/Brandeis/Chafee approach, focused on context, consequences and questions of degree, and Learned Hand's proposal of a hard, qualitative distinction based on the ‘nature' of the speech at issue, provides an early glimpse of the definitional tradition in American free speech law.

2. Categories and the first amendment

The early 1940s saw the first appearances of what would become the most prominent manifestation of the definitional tradition in American free speech law: the rhetoric and practice of categories and categorization. It is in the debates on the attractions and vices of ‘categorization', that the opposition between balancing and the definitional tradition - and, by association, between balancing and the attractions and vices of legal formality - became most starkly visible; even more clearly than in the discussions on Learned Hand's test in respect of balancing and the attrac­tions and vices of legal formality.

(a) Early Supreme Court categories: Chaplinsky v. New Hampshire (1942) and onwards

In a series of cases that began with Chaplinsky v. New Hampshire (1942) and continued through Beauharnais v. Illinois (1952) and Roth v. United States (1957), the Supreme Court held that particular kinds of utterances were categorically unworthy of first amendment protection. Although many of the specific assessments made in these cases have since been reversed or modified,^[787] the basic analytical structure and rhetorical form inaugurated in Chaplinsky retain an important place in the landscape of American constitutional thinking, even to this day.^[788]

Walter Chaplinsky was a Jehovah's Witness who was convicted of shouting ‘you are a God damned racketeer' and ‘a damned Fascist' at a local police officer during a demonstration in Rochester, New Hampshire. In a unanimous decision for the Supreme Court upholding his convic­tion, Justice Murphy wrote:

[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional 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 utterances 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.^[789]

Because Chaplinsky's ‘fighting words' lay outside the scope of coverage of the first amendment, it was unnecessary for the State of New Hampshire to show that his arrest and conviction served any societal interest that could override any right to freedom of expression in this specific case.^[790] A few weeks after Chaplinsky was decided, the Court adopted a very similar approach in the case of Valentine v.

The quoted passage from Chaplinsky came to be cited as authority for the proposition that particular kinds of speech - libel, obscenity, ‘fighting words', etc. - lay outside the coverage of the first amendment. Chaplinsky, in this sense, introduced what Harry Kalven later called a ‘two-level the­ory' of freedom of expression, according to which some forms of speech are entirely ‘beneath First Amendment concerns'.^[792] The most famous applications of this two-level model concerned (group)-libel and obscen­ity. In Beauharnais v. Illinois (1952), the Court quoted Chaplinsky to sup­port its conclusion that ‘libelous utterances' were not ‘within the area of constitutionally protected speech', which meant that it was not necessary to consider whether they represented any ‘clear and present danger'.^[793] And in Roth United States (1957), it was stated, again under reference to Chaplinsky, that the Court had always assumed that ‘obscenity' was out­side ‘the area of protected speech and press'.^[794]

In the wake of Chaplinsky and Valentine, a ‘categorization' approach came to signify a determination of first amendment cases based ‘solely on the basis of the first amendment value of the utterance itself, without regard to possible justifications for restriction'.^[795] In such a categorization model, questions as to the likely consequences of speech or as to the rel­ative importance of possible countervailing social interests were simply irrelevant. ‘What distinguishes a categorization approach from clear-and- present-danger and similar tests', John Hart Ely wrote, ‘is that context is considered only to determine the message the defendant was transmit­ting.' Whereas a categorization approach ‘asks only “What was he saying?” [...] A clear and present danger or ad hoc balancing approach, in contrast, would regard that question as nondispositive: a given message will some­times be protected and sometimes not'.^[796]

(b) Categories and definitions: the first amendment theories of Thomas Emerson and Alexander Meiklejohn

In the course of the late 1950s and early 1960s, the theme of categories and categorization within first amendment law assumed a new, expanded meaning. No longer confined to Chaplinsky’s traditional set of ‘well defined and narrowly limited classes of speech', categorization - or clas­sification, as it was now also sometimes called - came to refer to any doc­trinal method that approached freedom of speech in a binary, ‘in-or-out’ way. The two most prominent propagators of such methods were Yale Law School's Thomas I. Emerson and Alexander Meiklejohn, who was not a lawyer but a well-known professor of philosophy.

The core of Emerson's theory of freedom of expression was a dichotomy between ‘expression’ and ‘action’.^[797] Expression would be entitled to ‘com­plete protection against government infringement', while action would be subject to ‘reasonable and non-discriminatory regulation designed to achieve a legitimate social objective'.^[798] Emerson summarized his pro­posed ‘doctrinal structure' for first amendment analysis as follows:

[Maintenance of a system of freedom of expression requires recognition of the distinction between those forms of conduct which should be clas­sified as ‘expression’ and those which should be classified as ‘action’ [.] Translated into legal doctrine based upon the first amendment, this the­ory requires the court to determine in every case whether the conduct involved is ‘expression’ and whether it has been infringed by an exercise of governmental authority [...] The test is not one of clear and present danger, or [.] balancing interests. The balance of interests was made when the first amendment was put into the Constitution. The function of a court in applying the first amendment is to define the key terms of that provision - ‘freedom of speech,’ ‘abridge,’ and ‘law.’^[799]

Emerson’s approach relies heavily on a conceptual apparatus and on imagery developed as a direct opposite to ‘balancing of interests’ or a flex­ible judicial assessment of proximate consequences in the circumstances of each case. His interest is in the construction of a hard, coherent ‘system’ of freedom of expression, in which the courts’ task is to classify and to ‘define’, not to weigh.^[800]

The same emphasis on definition and categorical boundaries can be found in the work of Alexander Meiklejohn. Meiklejohn was the foremost advocate of the idea that speech was to be protected because of its relation to self-government.^[801] The first amendment, in his view, did not forbid the abridging of speech per se, but it did categorically forbid the abridging of the ‘freedom of public discussion’.^[802] Meiklejohn’s theory, therefore, depended upon a clear definition of this narrower freedom; a definition that was to proceed through a binary distinction between expression rele­vant to the project of self-government, and expression not so relevant. At various points in his work, Meiklejohn made clear the centrality of this definitional enterprise to his theory. ‘There is a desperate need’, he wrote in the early 1950s, that the Supreme Court ‘should define much more accurately, and with more careful consideration, what is that “Freedom” which the First Amendment intends to secure’.^[803] By the time “balancing” became an important aspect of the Supreme Court’s case law, Meiklejohn was quick to point out the differences between the Court’s approach and his own theory. ‘The theory that asserts that constitutional values may be “balanced” by the appellate courts’, he wrote in response to the Barenblatt decision, ‘is radically hostile, not only to the first amendment, but also to the intent and provisions of the Constitution as a whole.’^[804]

While their underlying substantive principles were very different, in terms of analytical structure and style, the Emerson and Meiklejohn per­spectives on freedom of expression adjudication were highly similar. Both approached the question of protection for speech as a matter of defining the coverage of the first amendment, rather than as a matter of assessing the relative strengths of competing values or interests.^[805] That assessment, they argued, had been carried out by the framers when they decided to give absolute protection to the freedom of speech properly defined: inso­far as distinguished from action (Emerson), or insofar as related to the project of self-government (Meiklejohn).

The stature of Emerson, Meiklejohn and their theories meant that prominent alternative conceptual and discursive frameworks were avail­able precisely at the time balancing came to the fore in first amendment law. These alternative frameworks were emphatic expressions of an under­lying belief in the virtues of legal formality - of the attractions of hard def­initions and of not leaving matters to the discretion of ‘Tomdickandharry, D.J.' By implication, this meant that these theories contributed to a juris­prudential climate in which balancing and legal formality were seen as radical opposites.

On a comparative law aside, the prominence of the Emerson and Meiklejohn theories also made for an important difference with German jurisprudence of the time. German free speech law had known its share of proposals for definitional approaches, in the Weimar-era theories of Hantzschel and Schmitt and others.^[806] But none of these were given any serious traction when the Bundesverfassungsgericht came to decide its first major free speech cases in the late 1950s. The Luth decision ‘obliterated' all definitional opposition to Rudolf Smend's ‘material constitutionalism'. In the US, by contrast, although ‘clear and present danger' and balancing were enormously successful, they did not conquer all.

(c) ‘Absolutes': the first amendment of Justices

Black and Douglas

The fact that balancing did not conquer everything before it, was demon­strated most starkly in the position taken by Justices Black and Douglas. It was in their first amendment opinions that the definitional tradi­tion received its most high profile exposition in mid-twentieth-century

American jurisprudence, not just within the area of free speech law, but within all of constitutional law.

For Justices Black and Douglas, just as for Professors Meiklejohn and Emerson, questions of substantive principle and doctrinal structure were closely intertwined. Like Thomas Emerson, Black and Douglas espoused a principled ‘speech’/‘conduct’ dichotomy. ‘A “bright line” distinc­tion between speech and conduct’, Morton Horwitz wrote, was ‘a staple of Justice Black’s effort to develop an absolutist conception of the First Amendment that would nevertheless contain a clear limiting principle’.^[807] Justice Black ’s dissent in Barenblatt and Justice Douglas’ dissent in Dennis, to mention two of the cases discussed earlier, both contain prominent references to the speech/conduct distinction.^[808] In a later dissent, Justice Black explained his famous ‘I take ‘no law abridging’ to mean “no law abridging”’ reading of the first amendment^[809] in terms of specifically this distinction, when he wrote ‘I think the Founders of our Nation in adopt­ing the First Amendment meant precisely that the Federal Government should pass “no law” regulating speech and press but should confine its legislation to the regulation of conduct’.^[810]

The label used by both critics and the Justices themselves to frame this position on the freedom of expression was ‘first amendment absolutism’. This term was used inconsistently, ‘by both friend and foe’.^[811] What is clear though, is that its core meaning places it both squarely within the definitional tradition and in diametrical opposition to balancing. Dean Ely himself, for example, drew a contrast between balancers on the one hand and ‘categorizers, or ‘absolutists’’ on the other.^[812] G. Edward White’s description similarly makes clear the basic dichotomy. ‘Absolutism in First Amendment jurisprudence’, he writes, ‘refers to a jurisprudential perspective that ostensibly rejects balancing in free speech cases for an analysis that treats some, or even all, forms of expression as presump­tively protected’.^[813] I should emphasize once again, however, that just as with other manifestations of the definitional tradition - and, of course, as with balancing itself! - the meaning of ‘absolutism' cannot fully be captured in terms of merely an analytical device. There was an important rhetorical dimension to the two Justices' position. Absolutism, for them, was at least in part ‘a rhetorical device to express an attitude about how first amendment adjudication should be approached'.^[814] In this way, abso­lutism symbolized their condemnation of ‘how the balance worked out after a decade of deciding cases growing out of [Anti-Communist] hys­teria'.^[815] Dean Ely, in Democracy and Distrust recognized that ‘a case can be made [...] that even though a Justice must know deep down that no one can really mean there can be no restrictions on free speech, there is value in his putting it that way nonetheless'.^[816]

Justices Black and Douglas' first amendment absolutism was by no means the last manifestation of the definitional tradition in American free speech law. The tradition continues to play a crucial role, through such doctrines as the prohibition on ‘content-based' restrictions,^[817] and in the way different classes of expression such as commercial speech,^[818] hate speech,^[819] and expressive conduct,^[820] attract differing standards of review. But within the period with which we are concerned, their opinions con­stituted the high-water mark of the hold of the definitional tradition on the American constitutional legal imagination.

(d) Balancing as ‘not definition'

By the early 1960s these various strands of the definitional tradition in American constitutional legal thought (Judge Hand's incitement test, the Chaplinsky and Chrestensen categories, the theories of Emerson and Meiklejohn and the first amendment ‘absolutism' of Justices Black and Douglas) coalesced into a powerful set of ideas, the primary focus of which was to challenge the theory, practice and rhetoric of balanc­ing. The definitional tradition grew into a definitional school.^[821] Its main tenet was opposition to judging the constitutionality of laws by way of ‘an interest-balancing technique', and its principal flag bearers were the two Justices.^[822] Categorization now became more than just a particular analytical device to be used with regard to particular forms of speech, or a specific conceptual tool for theories of freedom of expression. It became the centrepiece of a ‘style' in constitutional legal reasoning; a style that competed for dominance with the style of balancing.^[823]

Both the content and the mere existence, and persistence, ofa set of ideas presented as diametrically opposite to balancing are deeply significant for the local meaning of balancing in US constitutional legal discourse.

First, as to content, it is in the opposition between balancing and its definitional alternatives that some of the perceived core attributes of bal­ancing are most clearly expressed. The main theme to come out of this opposition is that of attention to context and consequence s, which balan­cing was thought to offer and definitional approaches were seen to avoid. This particular aspect of balancing's meaning can be traced all the way along the definitional tradition.^[824]

But beyond their specific content, the mere existence, and persistence, of a high profile set of ideas alternative to balancing, had important impli­cations for balancing's local meaning. It meant that balancing came to be understood, to a large extent, by way of this opposition. Balancing really was, to an important degree, not categorization, or not definition - just as categorization and definition were understood to be not balancing. This pervasive opposition cast balancing as a prime instance of the ‘not formal' in constitutional law - of constitutional legal anti-formality.^[825]

These two mutually exclusive styles (definitional and balancing, for­mal and anti-formal) came to dominate debate on freedom of expression to such an extent that they were thought by many to cover much of what first amendment adjudication was all about. Dean Ely, in the mid 1970s remarked how debate in this area had ‘traditionally proceeded on the assumption that categorization and balancing [...] are mutually exclu­sive approaches to the various problems that arise under the first amend- ment'.^[826] Many contemporary contributions similarly framed key issues in free speech law, or even in constitutional rights law generally, in terms of the opposition between balancing and its definitional alternatives.³⁵⁰ Most famously perhaps: Ronald Dworkin's 1970 essay Taking Rights Seriously is centrally concerned with the dichotomy between a model of ‘striking a balance between the rights of the individual and the demands of society at large' and a principled search for ‘grounds that can consis­tently be used to limit the definition of a particular right'.³⁵¹

F.