Contemporary critiques of balancing in US free speech jurisprudence of the 1950s and 1960s

This section gives an overview of some of the main themes in contem­porary critiques of balancing in American constitutional rights jurispru­dence, with particular reference to the context of the freedom of speech.

1. Nature and scope

As in Chapter 3, on German balancing discourse, a first way to distinguish among contemporary interpretations and critiques of the Supreme Court balancing decisions is according to the position judges and commentators

of Central Hudson as imposing a ‘balancing test' see, e.g., Sunstein (1996) pp. 82ff. See also Grimm (2007), p. 384 (noting that Central Hudson ‘was not a trend-setting decision that gained much influence outside commercial speech problems').

⁹⁶ Meiklejohn (1961b); Frantz (1962); Mendelson (1964).

⁹⁷ Fried (1963); Shapiro (1963a); Henkin (1978).

⁹⁸ See, e.g., Emerson (1963); Kennedy (1969); Emerson (1970); Ely (1975); Schauer (1981). took on the question of what balancing was. Before looking at the differ­ent relevant views in detail, one comparative observation may be help­ful. Simplifying somewhat: while the Bundesverfassungsgericht typically invoked Guterabwagung on the level of general constitutional rights the­ory, at the US Supreme Court the standard reference would be on the level of constitutional legal doctrine for a - more or less narrowly circum­scribed - area of first amendment law.

(a) Doctrine, technique, theory

On the Supreme Court itself, the balancing debates between the Justices were mostly confined to discussions of balancing as a form of first amend­ment doctrine. The precise scope of application of this doctrine of balanc­ing, however, was subject of some uncertainty. Observers could note quite easily that balancing had ‘come to the fore largely in a single type of case', involving compelled disclosure of connections to communist organiza­tions.^[595] But this narrowly circumscribed factual situation-type clearly did not exhaust the range of balancing language used by the Justices. The Dennis case in particular did not fit this description. Defining in broader terms the kind of problems to which balancing as doctrine would be applicable, therefore, was not easy.

The Justices themselves made a number of attempts at demarcation. In Douds, Chief Justice Vinson explicitly limited his discussion of balancing to cases in which ‘particular conduct is regulated in the interest of pub­lic order'.^[596] And in Konigsberg, Justice Harlan spoke of ‘general regula­tory statutes, not intended to control the content of speech'.^[597] Both these criteria were clearly inspired by an effort to link the incendiary ‘loyalty oath' and ‘compulsory disclosure' situations to the more pedestrian pre­War Schneider line of cases on ‘time, place, and manner' restrictions.^[598] Further indices as to the scope of application of balancing as a doctrine came from its opponents.

Taken together, these statements suggest that balancing as doctrine should be limited to cases in which the governmental measure at issue was both (a) primarily directed at and - or? - had a primary effect on conduct rather than on speech and (b) in which this measure was neutral as to the content of expression, in its aims and - or? - in its effects.^[601] As the ambiguity in this summary shows, however, these judicial statements clearly do not answer all questions as to the scope of balancing as doc­trine.^[602] In terms of application, therefore, the scope of balancing as doc­trine was far from clear.

On a second set of views, the language of balancing denoted a particu­lar judicial technique, of which first amendment doctrine was merely the most prominent instance.^[603] Justice Black's position in particular could be read at least partially in this way. A telling example can be found in his criticism, in Barenblatt, of the majority's decision to accept ‘a balancing test to decide if First Amendment rights shall be protected'.^[604]

Naturally, such discussions tended to move especially quickly towards the comparison of balancing with alternative judicial techniques. To take a typical example: a contemporary author would distinguish ‘two principal approaches' within ‘judicial methodology in constitutional cases': (a) ‘the “interest-balancing” technique which may be seen in such diverse matters as state power [...] to regulate interstate commerce [...] and First Amendment freedoms' and (b) the ‘application of more-or-less rigid rules or standards to factual situations'.^[605] By far the most prominent juxtaposition in terms of judicial method in the context of first amend­ment law, hinted at in this example, was the one between ‘balancing' and ‘classification' - often also called ‘categorization'.^[606] That opposition will be discussed in greater detail in Section E of this chapter, as part of the ‘definitional tradition' in American constitutional legal thought and as an important aspect of balancing's American local meaning.

On a third set of views, closely related to the balancing/classification dichotomy, balancing language was seen as expressive of a normative theory of constitutional rights protection, either in general terms or for the first amendment specifically. Justice Black's February 1960 Madison Lecture at New York University is an influential example of the former. Black sketched a theory according to which ‘individual rights must, if outweighed by the public interest, be subordinated to the Government's competing interest' as one of two fundamental approaches to the inter­pretation of the Bill of Rights.^[607] That theory, Black argued, rested ‘on the premise that there are no “absolute” prohibitions in the Constitution, and that all constitutional problems are questions of reasonableness, proxim­ity, and degree'.^[608] Black thought the ‘clear and present danger' test and the explicit ‘balancing' test were both ‘verbal expressions' of this underlying theory.^[609]

Thomas Emerson's work, finally, offers a prominent example of the view of balancing as a theory of free speech law.^[610] The task for the judi­ciary in maintaining a system of freedom of expression and integrating it ‘into the broader structure of modern society', Emerson argued, was to develop ‘principles of reconciliation' for competing values, ‘expressed in the form of legal doctrine'.^[611] Emerson saw a range of difficulties with the Court's balancing test, which meant that, in his view, the ad hoc bal­ancing test was ‘illusory' as ‘a legal theory of reconciliation'.^[612] Instead, he argued, the adoption and continued acceptance of the first amendment signified ‘that some fundamental decisions with respect to reconciliation have been made, that a certain major balancing of interests has already been performed'.^[613] The function of courts was not ‘to reopen this prior balancing', but to ‘define' as precisely as possible ‘the key elements in the first amendment'.^[614]

Both Black's ‘absolutism' and Emerson's ‘definitional approach' will be discussed further below, again as part of the ‘definitional tradition' in American law.^[615]

(b) It's all balancing

There was one further, very different, level on which balancing was dis­cussed.

Quite obviously, if this view of the meaning of balancing language is held, the significance of much of the debates between Justices Black, Frankfurter and Harlan changes dramatically.^[620] Referring to Black's cat­egorical approach, for example, one observer could note that on a view of ‘adjudication as balancing', there was ‘really no difference' between what Black proposed ‘and the general use of the “balancing” technique'. ‘Actually', this commentator concluded, “balancing” is the very essence of judging, because in every case there must be a determination of which of two or more conflicting interests will prevail [...] It seems much more realistic to recognize this to be the case than to rely on formulae which merely conceal'.^[621]

(c) Balancing on multiple levels

The parallel existence of multiple levels at which balancing was discussed, from ‘local' first amendment doctrine, via general normative theory of constitutional rights to descriptive theory of adjudication, is significant in and of itself.

One noticeable first trend was for support of reliance on balancing to occupy lower levels of generality - the narrower, localized perspectives of balancing as doctrine or judicial technique - than critical assess­ments. The easiest way to make this point is to look at some typical critiques. Commonly, whenever Justice Black, Charles Reich, Laurent Frantz or other critics referred to some ‘general theory' that conceived of civil liberties adjudication as a wholesale balancing of competing interests, they neglected to include references to scholarly or judicial contributions actually advocating such a view. In his Madison Lecture, for example, Black cited no adherents of the ‘theory' that ‘all consti­tutional problems are questions of reasonableness, proximity, and degree'. Laurent Frantz gave no examples of writers or Justices advo­cating ‘the theory that the first amendment [. ] protects not rights but “interests”'.^[623] And when Frantz wrote that ‘[i]f a balancing test is applied to the first amendment, it is hard to see why it should not be applied to the entire Constitution', he did not cite any real adherents of such a comprehensive approach.^[624]

Particularly striking in this respect was the work of Charles Reich, one of Justice Black's principal apologists. Reich claimed that ‘[d]uring Justice Black's years on the Court its majority has been dominated by a philoso­phy of constitutional adjudication based upon the weighing of conflicting values', which holds that the judicial task ‘is to resolve these conflicts by the exercise of judgment on a case-by-case basis'.^[625] But again no expla­nation of the background or content of this ‘philosophy' was offered, nor were references to judicial opinions to substantiate the claim. Balancing on these higher levels of normative theory, then, appeared largely as a straw man.^[626]

A second striking trend was for critical discussions of balancing to include some kind of acknowledgment that ‘balancing' in some form or other was natural or inevitable, even when the ‘balancing' of the Supreme Court decisions was to be vigorously rejected. Sometimes this nod took the form of a - possibly somewhat ironic - reference to an original ‘balancing' undertaken by the framers of the Bill of Rights.^[627] Most common, however, was an acknowledgment of the unavoidability of ‘balancing' on the level of the mental processes of decision making. Thomas Emerson, for example, who advocated a categorical distinction between ‘expression' and ‘action' as the centrepiece of his theoretical framework, accepted that this definitional approach ‘of course' involved ‘a weighing of considerations'. That ‘weighing', though, was, he argued, ‘narrower, taking place within better defined limits, than ad hoc balan- cing'.^[628] Laurent Frantz made a similar concession: ‘[T]hough the mental process by which a judge determines what rule to adopt can be described as “balancing,” this does not make it the same as “balancing,” independ­ent of any rule, to determine what is the best disposition to make of a particular case.'^[629]

Statements of this type are illustrative of the hold balancing vocabulary exercised, even over its critics. The dominance of the idiom also gives a rather defensive feel to many of the critiques of balancing. This tension between, on the one hand, the impetus to understand and describe adju­dication in balancing terms - as a badge of basic Realist sophistication - and, on the other hand, persistent doubts as to the legitimizing capacity of any judicial method denoted by this language, will be discussed in greater detail in Section E.

2. ‘Balancing away'

Contemporary critics of balancing were concerned, more than anything else, with its implications for the meaning and force of constitutional rights guarantees, in particular with regard to freedom of expression.^[630] Three themes within these critiques were particularly prominent.

(a) The genius of a written constitution

First, critics argued that balancing was an unsuitable technique for any form of adjudication constrained by written rules of law. Balancing, on this view, as Justice Black wrote, violated ‘the genius of our written Constitution'.^[631] ‘The balancer's thinking processes eliminate the con­stitutional text so completely that he soon forgets there ever was one', Laurent Frantz wrote.^[632] The ‘authority of the Constitution' as a whole, on this view, was at risk.^[633] Such unbounded balancing undermined the strength of the first amendment. In abandoning constitutional text, this argument ran, balancing assured ‘little, if any, more freedom of speech than [would have been the case] if the first amendment had never been adopted'.^[634] The balancing text ‘watered down' the ‘unequivocal com­mand' of the Bill of Rights ‘into a quavering “Abridge if you must, but try to keep it reasonable”'.^[635]

(b) Not just any rule of law

A second line of argument held that balancing threatened a critical loss of meaning for the first amendment specifically. This argument took several different forms. For some, like Alexander Meiklejohn or Justice Black, the first amendment was among a small group of civil liberties that simply could not be ‘abridged' (although the scope of their application could be defined more or less broadly). In Meiklejohn's view, for example, the first amendment, as ‘the most significant political statement which we Americans have made', was incompatible per se with any theoretical framework that accorded ‘equal status' to the freedom of expression as to competing interests, such as public security or even self-preservation (as in Justice Frankfurter's Dennis concurrence).^[636] Others, while not adher­ing to Black's and Meiklejohn's ‘absolutism', still thought balancing was incompatible with some principle fundamental to their preferred the­ory of freedom of expression. Thomas Emerson's categorical distinction between ‘conduct' and ‘expression', or Harry Kalven's view of the ‘central meaning' of the first amendment as a prohibition restraints on criticism of governmental authority, were two prominent examples of theories that appeared to ask for something different than a generic balancing exer- cise.^[637] On these views, the first amendment had a distinctive ‘positive' meaning that a mere ‘negative' conception in terms of conflicting inter­ests could not capture.^[638] The first amendment specifically, in one striking formulation, should not be treated as if it were ‘ just another rule or princi­ple of law’.^[639] The language of balancing, with its connotations of utilitar­ian calculus and social engineering was simply insufficiently sensitive to the distinctive and exalted position of freedom of speech in the American constitutional tradition.^[640]

(c) Slippery slopes

A third critical theme, finally, was the idea that the Supreme Court's ‘bal­ancing opinions' failed to offer sufficient protection to the freedom of expression; the idea that balancing, in Justice Black's words, was a ‘dan­gerous doctrine'.^[641] Especially between 1950 and 1960, when the ‘red scare' had been at its height, the Supreme Court majority's balancing approach was thought to have fallen short in protecting civil liberties. ^[642] ‘The Court's ad hoc balances are on a “slippery slope” ', Charles Reich wrote in this vein. ‘Each is likely to reflect present-day needs and views [...] The urgencies of the day, like gravity, pull the Court along; there is no counterweight in its formula to maintain a constant level'.^[643] The risk of excessive deference to the legislative and executive branches was felt to be especially severe. ‘As applied to date', Thomas Emerson concluded in 1963, ‘the test gives almost conclusive weight to the legislative judgment'.^[644] While it was true, in his view, that the balancing test itself did not ‘necessarily compel this excessive deference', ‘the operation of the test tends strongly towards that result'.^[645]

And even if the Supreme Court itself might be able, against experi­ence and expectation, to withstand these ‘urgencies of the day', critics pointed out that its balancing approach, in any event, did not give suf­ficient guidance to either rights claimants or to those on the frontlines of the first amendment - police officers, civil servants and lower courts. Balancing reduced the protection of civil liberties to guesswork.^[646] This unpredictability could only undermine effective protection for rights. It was this concern that was part of the animating force behind Justice Black's insistence on ‘firm and easily apprehended constitutional stand­ards', that would ‘minimize the vagrant propensities and biases of the

thousands of judges [...] called on to administer our constitutional order'.^[647]

(d) Weighing and outweighing

In many contemporary discussions of balancing an almost automatic connection was drawn between ‘balancing' and ‘balancing away', and between ‘weighing' civil liberties and allowing them to be ‘outweighed'. Justice Black's evocative imagery of civil liberties being ‘weighed out of the Constitution' lies at the core of a tradition of associating balancing with diminished protection for constitutional rights.^[648] “[B]alancing”, or even worse “ad hoc balancing”, still carries a bad odor', Frederick Schauer wrote of the first amendment context at the end of the 1990s.^[649] That asso­ciation is, at least partially, ‘a legacy of the debates of the 1950s and 1960s, in which “balancing”, especially as championed by Justice Frankfurter, was associated with a tendency to take the substance of governmental justification for restricting speech quite seriously and with a tendency to defer to the government's own determinations of the weight of those justi­fications'.^[650] However hard proponents of balancing might argue that such ‘balancing away' was not unavoidable and that rights might just as easily be ‘defined away', the ‘alignment of balancing with scantier free speech protection' has remained strong ever since.^[651]

3. The institutional position of the judiciary

A final lens for looking at contemporary discussions of balancing is by way of the question of its implications for the institutional position of the judiciary, in particular with regard to the exercise of constitutional judicial review. ^[652] Both the ‘balancers' and their opponents agreed on the importance of keeping the judicial function distinct from ‘politics' - of maintaining some kind of conceptual boundary between adjudication and ‘policy-making'.^[653] What they disagreed over was how to carve out such a distinct judicial role. For Paul Freund, a long-time observer of the Supreme Court, the approaches of both sides had to be seen as responses to the constitutional crises of the Lochner period:

Different minds, repelled alike by the excesses of the Court, neverthe­less responded in different ways. Some were profoundly confirmed in the view that in a democratic society the judges must defer to the more representative organs of government [...] Justice Black [...] drew a dif­ferent moral from the experience through which we had passed. For him the lesson was that the judges lose the way when they put glosses on the Constitution, that they are safe, and the people secure, only when they follow the mandates of the Framers in their full and natural meaning.^[654]

For Justice Frankfurter, safeguarding a distinct domain for the judiciary meant recognizing the inherently political nature of adjudication and lim­iting the judicial function to a highly deferential form of review. ‘[Consti­tutional law [.] is not at all a science, but applied politics', Frankfurter wrote while still a law professor.^[655] Because judicial decision making, on this view, was essentially identical to political decision making, the Supreme Court should limit its review of Congressional actions to a bare minimum of reasonableness testing.^[656]

This understanding lay at the heart of Justice Frankfurter's conception of balancing. Political reasoning was ultimately concerned with recon­ciling competing values and interests. Judicial reasoning, on any frank assessment, could not be anything else.^[657] And because the question of ‘how best to reconcile competing interests' was the business of the legisla­tures, the balance they struck had to be respected by the courts, unless it lay ‘outside the pale of fair judgment'.^[658]

A radically different conception of the nature of constitutional adju­dication, in turn, sustained Justice Black's and others' opposition to bal­ancing. ‘Justice Black's theory of judicial review [...] precludes unfettered judicial subjectivity by pinning down constitutional adjudication to the interpretation of specific written language', wrote Sanford Kadish.^[659] On this view, keeping the judicial function distinct from politics, meant recognizing that the text of the Constitution and the Bill of Rights ‘means what it says and that [the Supreme Court] must enforce that meaning'.^[660] Because what the Supreme Court did, or rather what it ought to be doing, was inherently and qualitatively different from what Congress did, Black thought, there could be no question of the judiciary intruding upon the legislative domain.^[661] It was only when judges would begin to engage in the ad hoc weighing of values and interests that this fragile line of demar­cation would be breached, with potentially serious consequences for the institutional position of the judiciary.^[662]

Both these positions were subject to extensive debate during the late 1950s and the 1960s. Some of these discussions will figure in the next section, which deals with the demand for new standards for judicial rea­soning during this period. At this stage, two observations are import­ant. First, it is noteworthy how much of the general controversy over the judicial role came to be played out via the language of balancing. And second, reliance on this form of language often made these debates less productive than they perhaps could have been, in particular because par­ticipants tended to conflate, under a single ‘balancing' label, theory and practice, rhetoric and substance. Those claiming that balancing came down to ‘legislating from the bench' often ignored that both Frankfurter and Harlan adhered to a severely circumscribed view of what such judi­cial balancing entailed. So, for example, a serious evaluation of alternative means by which Congress could have achieved its objectives - an exercise which intuitively could easily be counted as ‘balancing' - was consistently proclaimed to lie largely outside the realm of judicial control by the ‘balan­cing' Justices.^[663] On the other hand, balancing's supporters, who claimed that Justice Black's reliance on ‘absolutes' and ‘literalness' resulted in an unrealistic depiction of the judicial process, often neglected the more symbolic, rhetorical and strategic dimensions of Black's position - the idea that ‘the extremity of Justice Black's absolutist professions' had to be qualified as ‘an opposition program' that was ‘mainly tactical.'^[664] As Alexander Bickel wrote in his 1961 Harvard Law Review Foreword: ‘Justice Black knows as well as anyone else that free speech cannot be an absolute [...] and that the first amendment does not literally say any such certain thing.'^[665] The notion of absolutes, in the eyes of Justice Black's supporters, had to be seen rather as a general ‘plea for constitutional adjudication with definite standards', and as an appeal for adjudication to take place ‘on a far higher plane of generality than the balancing formula demands'.^[666]

Ironically, perhaps, it may have been precisely Black's extreme choice of rhetoric that made it so easy for his critics to undermine his, to some extent rhetorical, project. But then again, much the same could be said for the balancers' choice of language.

D.