Introduction
‘ So much has been written on the subject', Kenneth Karst observed in 1965 with an air of exasperation, that we have been told ‘more about balancing than we wanted to know.'[507] But, he added ‘there remains some uncertainty about what the very term means'.2 Karst's observation succinctly captures the mood pervading American scholarly debates on constitutional rights adjudication, especially in the first amendment context, in the early 1960s.
‘Balancing' had already come to be a dominant theme in the relatively young area of civil rights adjudication. Its centrality was not wholly welcome. And yet, no one was entirely certain what the label even referred to.To a large extent, this picture mirrors contemporary developments in Germany, discussed in the previous chapter. In the US too, this period saw an astonishingly rapid rise in prominence of the discourse of balancing. Even if the exact scope, nature and even the actual relevance of ‘balancing' in constitutional rights adjudication were far from certain, debates in the field were increasingly conducted in this language. As in Germany, balancing quickly became a focal point for some of the most heated disagreements in all of constitutional rights law.
This chapter takes up the story of balancing discourse in 1950s and 1960s American constitutional rights jurisprudence, in particular in the area of freedom of expression, where it first came to the fore and was debated most heatedly. As in the previous chapters, the aim is to elaborate a local meaning for balancing language in judicial and academic discourse. The setting for this analysis is radically different from, but also essentially connected to, the one discussed in Chapter 2. There, Roscoe Pound's Sociological Jurisprudence had to be situated in the context of a pre-1937 America in the Lochner era, in terms of received chronology.
The material for this chapter, by contrast, is not only significantly post-Loch- ner, but also very much ‘Cold War', and, largely, post-Brown v. Board of Education, the famous segregation case of 1954. Virtually all the decisions discussed below relate either to efforts to suppress domestic manifestations of communism or to the struggle over civil rights in the southern States. And they were handed down and debated in a context of acutely heightened sensitivity over the proper boundaries of judicial power.1. Argument: contrast and opposition
If balancing in German constitutional jurisprudence fulfilled essential functions of synthesis, integration and harmonization, its local American meaning emerges primarily out of juxtapositions and contrasts with other currents of discourse. I discuss two major such contrasts in this chapter.
First, there was a clash between an increasing emphasis on the need for ‘realistic' understandings of the processes of adjudication on the one hand and renewed demands for judicial reasoning to satisfy special standards of justification on the other. Judicial reasoning increasingly had to be convincing as a depiction of what judges actually did. But this increasingly ‘realistic' picture also had to conform to a newly affirmed acceptable ideal image of what judges should be doing. This conflict had been some time in the making. But it came to a head at exactly the time of the battle over balancing at the Supreme Court, especially after the publication of seminal critiques of the work of the Court by Henry Hart and Herbert Wechsler in 1959.
Secondly, the language of balancing assumed its meaning through constant opposition with what will be called the ‘definitional tradition' in American constitutional legal thought. At each of the various stages of the development of the discourse of balancing in the freedom of expression context, a prominent ‘definitional' alternative was being promoted; whether by way of an ‘absolute and objective' judicial test, a principled definition of a ‘core' of the first amendment or in some other form.
Those alternatives were conceived of, by their exponents and critics alike, as diametrically opposed to anything ‘balancers' were thought to be doing. The arguments used, on both sides, in the ensuing classic debates have become an integral part of balancing's American local meaning.As in the case of German jurisprudence, this American local meaning of balancing will ultimately be expressed in terms of the formal/substantive opposition.[508] Most of the work involved in making these connections is for Chapter 5. But the basic relationships can be sketched as follows.
The search for appropriate standards for the justification of judicial decisions was in many ways a struggle over the virtues of, and appropriate role for, legal formality. On the other hand, the intellectual currents that demanded a more ‘realistic' depiction of adjudication were prominent expressions of the substantive in law. The first of the two clashes outlined above, between these demands of ‘reasoned justification' and ‘pragmatic instrumentalism', thus emerges as a proxy for the formal/substantive opposition as a whole.
As for the second contrast outlined earlier, I will argue in Chapter 5 that the definitional tradition in first amendment jurisprudence is a preeminent, distinctive expression of ideals of legal formality in American legal thought. Insofar as the meaning of balancing emerges from its continuous opposition to this tradition, it is imbued with a correspondingly distinctive sense of anti-formality. In Chapter 5, these ‘typically American' notions of legal formality and anti-formality will be compared with their ‘typically German' and, by extension, Continental-European counterparts.
2. Free speech and balancing in American jurisprudence
In one sense, studying balancing discourse in early postwar German jurisprudence was relatively easy. There, a single Bundesverfassungsgericht judgment, Luth, was the obvious starting point from both the free speech and the balancing perspectives.
Pre-War developments in academic literature were certainly important in terms of understanding the Luth decision and its aftermath, but could be dealt with in the form of ‘flashbacks', as was done in Chapter 3. Earlier case law could largely be left aside.Matters are not so straightforward in the American context. ‘The problem in running one's mind over the American tradition of freedom of speech', Harry Kalven Jr. wrote in the early 1970s, is ‘to find some point from which to begin the journey.’[509] Although Supreme Court pronouncements on the first amendment began only in earnest in 1919, a number of important decisions had already been handed down by the end of the Second World War. These decisions would have significant repercussions on postwar free speech law. Not only is a starting point difficult to identify, it is also impossible to capture the American free speech tradition in a single judgment, or even a series ofjudgments, in a way that comes close to the sense in which the Luth case and its aftermath are representative for German free speech law.[510] Where the Bundesverfassungsgericht in Luth set out to develop an overarching, comprehensive approach to free speech adjudication, even to constitutional rights adjudication as a whole, the picture in the US is largely of a patchwork of doctrines and subdivisions. As another commentator, Thomas Emerson, wrote in 1970, ‘[t]he outstanding fact about the first amendment today is that the Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases'.[511]
If the American free speech landscape, then, is significantly more varied and complex than that encountered in Germany, the object of this study specifically - the meaning of the language of balancing - is arguably more elusive as well. In Germany, Luth and subsequent cases set out ‘balancing' as an overarching principle of constitutional interpretation.
In the US, by contrast, there is no comparable seminal foundational ‘balancing' decision. In addition, the significance of balancing, to the extent that it did figure in Supreme Court opinions, has in the American context always been much more severely contested. While it is generally understood that balancing as ‘an overarching principle of constitutional construction has never been Supreme Court doctrine',[512] little common ground has ever existed as to what precisely balancing did, and does, mean. Some contemporary commentators saw a wide role for balancing in Supreme Court case law. Emerson, for example, whose views on the lack of coherence in the Court's approach were cited above, also wrote that ‘[i]nsofar as the Supreme Court has developed any general theory of the first amendment it is the ad hoc balancing formula'.8 And in Democracy and Distrust, John Hart Ely argued that in the 1950s and into the 1960s ‘the Court followed [an] approach of [...] essentially balancing in all First Amendment cases'.[513] For other contemporary observers, however, it remained ‘obscure' whether a Supreme Court majority regarded ‘‘balancing' as applicable to all first amendment cases, and if not, to what class of cases it applies'.[514] This fragmented landscape, I argue below, does not only affect the search for balancing's meaning; it actually forms an integral part of that meaning itself, by creating constant opportunities for contrast and comparison.3. Engaging with a ‘balancing war'
Engaging with the twin themes of balancing and 1950s-1960s American free speech jurisprudence means engaging with an American constitutional classic. In the eyes of many contemporary observers, explicit disagreement between the Justices over the meaning and merits of ‘balancing' became one of the key features of Supreme Court first amendment opinions of the era and one of the central battlegrounds of constitutional adjudication more generally.
Within a fragmented free speech landscape, ‘[t]he one thing which appears to emerge with reasonable clarity', Laurent Frantz wrote in 1962, ‘is that “balancing” has become the central first amendment issue'.[515] A veritable ‘balancing war', so labelled by contemporary observers, raged between on the one hand Justices Frankfurter and Harlan and on the other Justices Black and Douglas. This war was fought out in a series of majority, concurring and dissenting opinions of the 1950s and the early 1960s.[516]In terms of its position within the genealogies of balancing and of free speech law, two features of this controversy between so-called balancers and their opponents, the so-called absolutists, are particularly noteworthy.[517] First, a number of contemporary participants voiced concerns that the ‘balancing/absolutism debate', notwithstanding its high public profile, failed to capture anything of real salience in constitutional rights jurisprudence. The debate, for many, was a simple ‘verbal shell'[518] that should ‘collapse for want of inner substance' - an ‘unfortunate' dispute ‘shrouded in semantic confusion'.[519] There was, therefore, a debate on the debate over balancing. Secondly, later commentators have often viewed the debate as a discrete historical incident. It was, they thought, a dispute that had, by the time of their writing, already passed.[520] This was generally seen as a positive development. In the late 1970s already, scholars were loath ‘to reopen the controversy that agitated the Supreme Court a generation ago',[521] and in the 1980s some were glad that the ‘naive’ disputes over the merits of ‘balancing’ and ‘absolutism’ of the 1950s and 1960s were over.[522] Others, on the other hand, wondered why the disputes that were ‘fashionable’ in this earlier period had been left behind, and actively promoted ‘a re-opening of the balancing debate’.[523] Balancing, then, appears subject to the same permanent argumentative conflict, and the same pendulum-swing style narrative, that characterizes American jurisprudence as a whole.[524]
4. Legacies of pre-1950s first amendment doctrines
One of the arguments this chapter seeks to make is that the rise of balancing discourse in mid-century American constitutional law has to be understood in the context of a pragmatic search for solutions to new problems through the adjustment and modification of existing doctrinal structures. Once introduced as part of the re-interpretation and adaptation of older ‘tests’ and doctrines, the language of balancing quickly took on a life of its own. Developing that argument requires a short introduction to the main elements of free speech jurisprudence from before the Second World War.
In very broad terms, two general categories of freedom of expression cases can be distinguished in the Supreme Court’s pre-1950s case law. First, there were those cases decided mostly in the immediate aftermath of the First World War and concerned with what was called ‘seditious speech’ or ‘subversive advocacy’ - expression critical of the government, or expression allegedly aimed at undermining the war effort. A second category concerned principally cases in which curbs on free speech resulted indirectly from general, local or State governments' regulations that were not themselves focused on limiting expression.
(a) Subversive advocacy: ‘clear and present danger'
The American tradition of protection for freedom of expression is often traced back to the Supreme Court's decisions in the ‘Sedition Act' cases of Schenck and Abrams of 1919.[525] The Sedition Act of 1918 forbade the publication or utterance during wartime of ‘disloyal' language or language intended to bring the government or the military of the US into disrepute. In the Schenck case, the defendants were convicted under the Act, for writing that army conscription was ‘a monstrous wrong' and that conscripts were ‘little better' than convicts.[526] Justice Oliver Wendell Holmes announced, in his opinion for the Court upholding the convictions, what would become famous as the clear-and-present-danger test:
[T]he character of every act depends on the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic [Th The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.[527]
When looked at through the lens of later debates, a number of elements appear as particularly noteworthy in this iconic passage.[528] First, rather than trying to identify a ‘basic value' at the heart of what the first amendment should aim to protect, as most later approaches would, Justice Holmes offers a pragmatic exposition of what the Amendment should not cover.[529] Secondly, within this pragmatic framework, Holmes focuses in particular on the likely effect of utterances. The clear-and-present-dan- ger formula, by its terms, asks courts to make a prediction. Their task is empirical rather than value-based. Finally, it is important to note Justice Holmes' emphasis on the idea that constitutional protection for expression should be a question of degree, to be answered for individual cases on the basis of their specific circumstances. This is in keeping with his broader philosophical view that ‘the whole law depends on questions of degree as soon as it is civilized'.[530]
Justice Holmes' opinion has come to occupy a privileged position in the American free speech tradition. Although in Schenck itself the test was used to uphold the convictions of anti-War demonstrators, the clear- and-present-danger formula quickly became popular with libertarians as a doctrine thought to be highly protective of free speech, especially after Justice Holmes in his dissent in Abrams v. United States argued that only a ‘present danger of an immediate evil' could warrant a limitation upon the freedom of expression.[531]
(b) ‘Time, place and manner' restrictions; balancing?
When the direct aftermath of the First World War had passed, the focus of the freedom of expression cases to come before the Supreme Court shifted, from issues of ‘subversive' speech such as criticism of the US' involvement in the War in Schenck, Abrams and Debs, to other types of free speech claims. In the late 1930s and early 1940s, the Supreme Court decided a number of cases in which claimants asserted that general, non-speech related, municipal or State laws limited their rights of free expression or association. Such laws typically prohibited the distribution of flyers,[532] the use of sound-systems in public spaces[533] or the staging of demonstrations or marches,[534] and were most often challenged by religious groups, mainly Jehovah's Witnesses, and labour organizations.[535] In all these cases, local or State governments claimed that any resulting limitation on speech rights was an indirect, permissible, by-product of non-discriminatory, general measures in defence of non-speech-related public interests.
The Supreme Court never developed a unified, fully coherent approach to this new type of first amendment claims,[536] many of which were labelled as concerning indirect ‘time, place and manner' restrictions on speech.[537] In one sense, the familiar ‘danger' test clearly did not prove a good fit with the factual situations presented. At the same time, however, the Court was sensitive to a need to provide more stringent control over these speechimpeding measures than was possible under the general ‘rational basis' test with its ‘presumption of constitutionality', that it had come to use for all kinds of governmental interferences with individual freedom of action in the aftermath of the Lochner era.[538]
While in many of these cases the language of ‘clear and present danger' was still referred to,[539] the Court in fact often adopted some version of a ‘means/ends relation' test or ‘least restrictive alternative' test to assess the constitutionality of these general regulatory statutes. Intriguingly, in the elaboration of these tests, the Justices sometimes resorted to a form of balancing language. So, for example, in the leading ‘handbill', or flyer, decision of Schneider v. State (1939), Justice Roberts in his opinion for the Court characterized the case as pitting a ‘duty' of municipal authorities to keep their streets open, ‘which meant they could lawfully regulate the conduct of those using the streets', against a ‘personal fundamental right' of freedom of expression.[540] In every case of this kind, where a legislative abridgment of the right of freedom of speech was asserted, Roberts wrote:
the courts should be astute to examine the effects of the challenged legislation [...] [T]he delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.[541]
Justice Roberts' description of the Court's task as one of ‘weighing the circumstances' and of comparing effects of and reasons for legislative encroachments on the freedom of expression was cited in a number of subsequent handbill and picketing cases.[542] This approach, in the eyes of contemporary commentators, embodied a principled distinction between deferential ‘rational basis' review and more stringent, last-resort ‘danger' review.[543] As will be seen below, the use of the imagery of ‘weighing' in some of these opinions allowed later judges and commentators to view cases like Schneider as the ‘earliest balancing cases'.[544]
(c) Doctrinal legacies: summary
At the beginning of the 1950s, this was, sketched in very broad terms, what American freedom of expression doctrine looked like. The rhetoric of ‘clear and present danger', stemming from the First World War cases, was dominant in all areas of freedom of expression law, but the precise meaning and scope of application of ‘clear and present danger' as a doctrinal test were unclear. In cases involving ‘time, place and manner' restrictions, such as Schneider and Cantwell, the Court had struck down local and State regulations on the basis that they were too intrusive upon the freedom of speech. These cases seemed to strike a middle note between a stringent requirement that State regulation of speech be only ever a measure of last resort to ward off a clear danger, and a minimal ‘rational basis' test applicable to governmental interferences with private rights more generally. The theoretical and doctrinal bases for these decisions, however, were largely unclear.
B.