The ‘balancing opinions' at the Supreme Court

1. Introduction

From the beginning of the 1950s onwards, the Supreme Court was asked to decide a rapidly growing number of cases arising out of the new political tensions of the Cold War.

The starting point for an overview of these clashes has to be the case of American Communications Association v. Douds, decided in 1950.^[545] Douds was the first major postwar first amendment case concerning communism.^[546] It was also a case in which Chief Justice Vinson wrote an opinion for the Court containing balancing language, taken from the Schneider line of cases, that was seized upon in many of the later deci­sions.^[547] Justice Black dissented in Douds, as he would in many later com­munism cases, but his dissent did not yet touch upon the appropriateness of balancing as a method of constitutional adjudication. In Dennis v. United States, decided a year after Douds, balancing language surfaced once more, again in an opinion for the Court by Chief Justice Vinson, but this time in the form of a restatement, reinterpretation or modification of the ‘clear and present danger' test. Dennis is also significant for a con­currence by Justice Frankfurter that discusses the relationship between balancing and constitutional rights adjudication in very broad terms, and dissents by Justice Black and Douglas that begin to frame their disagree­ment with the majority in terms of balancing.

2. The early ‘balancing opinions': Douds and Dennis

(a) Douds (1950)

The case of American Communications Association v. Douds concerned a ‘loyalty oath' requirement in the labour law context. Section 9(h) of the National Labor Relations Act (Amended) 1947 provided that the National Labor Relations Board (NLRB), a governmental organization, would not hear any petitions or complaints from workers' unions, if these unions had not filed with the NLRB affidavits stating that none of their board mem­bers was or had been a member of a communist political organization and that none of them advocated, or even believed in, the overthrow of the US government by force. The constitutionality of Section 9(h) was challenged in federal court by a number of workers' organizations.

At the Supreme Court, Chief Justice Vinson's opinion for the Court rested on the view that the loyalty oath requirement was primarily a regu­lation of conduct in order to protect interstate commerce. These were the so-called ‘political strikes' that Congress had determined, as a matter of ‘fact', were carried out by labour leaders with communist affiliations. The central question raised by the case, for the Chief Justice, was to what extent any indirect limitations on first amendment rights resulting from this regulation of conduct, which was otherwise reasonable and rational, could render Section 9(h) unconstitutional.

When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the court is to determine which of these two conflict­ing interests demands the greater protection under the particular cir­cumstances presented.^[553]

‘In essence', the court's approach had to be one of ‘weighing the prob­able effects of the statute upon the free exercise of the right of speech [...] against the congressional determination that political strikes are evils of conduct which cause substantial harm'.^[554] The justices, therefore, had to ‘undertake the delicate and difficult task [.] 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'.^[555] This weighing in the Douds case led to a rejection of the claim of the unions.^[556]

(b) Dennis (1951)

Petitioners in Dennis were convicted under the Smith Act, a 1940 ‘sedi­tion' statute, for conspiring to organize advocacy of the overthrow of the US government by force.^[557] Chief Justice Vinson wrote an opinion for a plurality of four; Justices Frankfurter and Jackson filed concurring opinions; Justices Black and Douglas dissented.

With this Realist gloss in place, Vinson went on to revisit, through a ‘balancing' lens, two key elements of the Court's ‘clear and present dan­ger' tradition. First, he noted that many of the cases in which convictions had been reversed using ‘clear and present danger' ‘or similar tests', had been instances where ‘the interest which the State was attempting to pro­tect was itself too insubstantial to warrant restriction of speech'.^[561] Such an approach, however, could not be taken in Dennis, as the governmental interest at issue - national security - had to be considered sufficiently weighty, at least in the abstract. Vinson therefore proceeded to engage with the heart of the ‘clear and present danger' formula: the required likelihood and level of immediacy of the relevant ‘danger'. ‘The situation with which Justices Holmes and Brandeis were concerned', he wrote, had been one of relatively isolated speakers who did not pose any substan­tial threat to the community.

Chiefjudge Learned Hand, writing for the majority [in the Appeals court] below, interpreted the phrase 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'. We adopt this statement of the rule. 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.⁶⁰

Vinson held that on this standard, the court below had been entitled to convict the petitioners.

Noting that few questions of similar importance had come before the Court in recent years, Justice Frankfurter wrote a lengthy concurring opinion, in which he sought to recast the Courts' role in all of first amend­ment law along two main axes: balancing and deference to congressional authority. Frankfurter framed the issue in the case in terms of ‘a conflict of interests' between the appellants' right to advocate their political the­ory so long as their advocacy did not immediately threaten the organiza­tion of a free society, and the Government's right to safeguard the security of the Nation by measures such as the Smith Act. Frankfurter maintained that this conflict could not be resolved ‘by a dogmatic preference for one or the other, nor by a sonorous formula' - ‘clear and present danger' - ‘which is, in fact, only a euphemistic disguise for an unresolved conflict'.^[563] He framed his own preferred approach in the following terms:

The demands of free speech in a democratic society, as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process, than by announcing dogmas too inflexible for the non-Euclidian problems to be solved.

Frankfurter formulated his general approach on the basis of an overview of the different ‘types' of cases in which the Court had been faced with ‘conflicts between speech and competing interests'. This overview led to two basic propositions. First: free speech cases were not an exception to the principle that the Justices are not legislators. And second: the results reached in earlier decisions were ‘on the whole those that would ensue from careful weighing of conflicting interests'.⁶³ Given these two prop­ositions, Frankfurter defined the Court's role in first amendment cases as one of deferentially reviewing the way in which the legislature had struck a balance between ‘the interest in security' and ‘the interest in free speech'.⁶⁴ On such a deferential review, he upheld the convictions, even while expressing doubt about the practical wisdom ofjailing communists for speech offences.

Justice Black wrote a dissenting opinion that foreshadowed many of the themes he would elaborate during the height of the balancing debates with Justices Harlan and Frankfurter. Having noted that petitioners in this case had been convicted, not for attempting to overthrow the gov­ernment, nor for advocating any such attempt, but merely for agreeing to assemble and to ‘talk and publish certain ideas at a later date', Black concluded that the authorities had applied a ‘virulent form of prior cen­sorship of speech and press', clearly forbidden by the first amendment.^[565] As a second line of argument, Black held that the ‘clear and present dan­ger' test was the appropriate inquiry for dealing with cases of advocacy. The maj ority, in Black's view, had repudiated this classic test in a way that, illegitimately, permitted ‘laws suppressing freedom of speech and press on the basis of Congress' or our own notions of mere “reasonableness”'. ‘Such a doctrine', Black concluded, ‘waters down the First Amendment so that it amounts to little more than an admonition to Congress.'^[566]

3. The later ‘balancing opinions': Barenblatt and Konigsberg

For all their heated rhetoric, Douds and Dennis, were mere preliminary skirmishes compared to the conflict over balancing that was to erupt between Justice Black and Justice Harlan in the cases of Barenblatt and Konigsberg. This section deals with these decisions in turn.

(a) Barenblatt (1959)

In the course of the 1950s, the investigations into communist associations and activities by Senator McCarthy's House Un-American Activities Committee were regularly challenged in the courts. After having dealt with a number of cases on primarily procedural grounds, in 1959, in Barenblatt v. United States, the Supreme Court for the first time based its decision on the constitutionality of these investigations squarely on first amendment grounds.^[567] The case gave rise to both an authoritative treat­ment of the speech rights issues involved in legislative investigations, and a ‘key engagement' in the balancing debate.^[568]

The case concerned a young university lecturer, Lloyd Barenblatt, who had refused to answer questions from the House Committee on whether he was or had ever been a member of the Communist Party, in particu­lar whilst teaching at the University of Michigan a number of years ear­lier. Justice Harlan wrote a concise opinion of the Court for a majority of five. He began by noting that unlike the absolute protection against self-incrimination under the fifth amendment, the first amendment did not afford a witness the right to resist inquiry ‘in all circumstances'. His proposed method followed directly from this comparison: ‘[w]here First Amendment rights are asserted to bar governmental interrogation, res­olution of the issue always involves a balancing by the courts of the com­peting private and public interests at stake in the particular circumstances shown '.^[569] ‘The critical element', in Harlan's model of inquiry, was ‘the existence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness'.^[570] As the legislative competence of Congress in this situation was ‘beyond question' and there were no other factors ‘which might sometimes lead to the conclusion that the individual interests at stake were not subordinate to those of the state', Harlan's majority opinion concluded ‘that the balance between the individual and the governmental interests here at stake must be struck in favor of the latter', and that, therefore, the provisions of the first amend­ment had not been offended.^[571]

For Justice Black, the majority opinion accepted ‘a balancing test to decide if First Amendment rights shall be protected'. He voiced strong objections against both balancing in first amendment cases generally, and, in case some form of balancing had to be accepted, against the way the majority had carried out its balancing in the instant case. First, a balan­cing approach to the first amendment, in Black's view, offended the clear language of the amendment, violated the spirit of a written Constitution and went against the notion that ‘the Bill of Rights means what it says and that [the] Court must enforce that meaning'.^[572] Justice Black framed his position on balancing in unequivocal terms: ‘I do not agree that laws directly abridging First Amendment freedoms can be justified by a con­gressional or judicial balancing process.'^[573] There had been ‘cases suggest­ing that a law which primarily regulates conduct but which might also indirectly affect speech can be upheld if the effect on speech is minor in relation to the need for control of the conduct'. With the decisions in these ‘time, place and manner' cases, like Schneider and Cantwel/, Justice Black agreed. But, he wrote, the Court had not, in Schneider or in Cantwel/, sug­gested ‘even remotely [...] that a law directly aimed at curtailing speech and political persuasion could be saved through a balancing process'.^[574] Secondly, even assuming what he could not assume - that ‘some balan­cing' was proper in the case - Black opined that the Court had ignored its own test. At most, the majority had balanced ‘the right of the Government to preserve itself' against ‘Barenblatt's right to refrain from revealing Communist affiliations'. In framing its enquiry in this way, the major­ity had completely ignored the more abstract ‘interests of society' in the protection of the freedom to remain silent in front of the congressional committee.^[575] This form of inquiry, in Black's view, reduced balancing to ‘a mere play on words' and was completely inconsistent with the rule the Court had previously, in Schneider, given for applying a ‘balancing test': that ‘the courts should be astute to examine the effects of the challenged legislation'.^[576]

(b) Konigsberg (1961)

The case of Konigsberg,^[577] another ‘refusal to answer' case, was Act ii of the balancing debate between Justices Harlan and Black.^[578] Raphael Konigsberg had been denied admission to the California Bar because he had refused, on constitutional grounds, to answer the question of whether he was or had ever been a member of the Communist Party. As there was no constitutional authority to deny admission to the bar to members of the Communist party per se, this question was ostensibly asked merely to ver­ify indirectly the accuracy of Konigsberg's explicit claims that he did not advocate violent overthrow of government. Such advocacy, on the other hand, would constitute a constitutionally valid reason for exclusion.^[579]

‘At the outset', Justice Harlan began the analysis section of his major­ity opinion, ‘we reject the view that freedom of speech and association, as protected by the [First Amendment], are “absolutes,” not only in the undoubted sense that, where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gath­ered solely from a literal reading of the First Amendment’.^[580] The Court had, he added, always recognized ways in which the constitutional right to freedom of speech was ‘narrower than an unlimited license to talk’. In par­ticular, Justice Harlan noted, ‘general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exer­cise’ had been upheld whenever they were ‘justified by subordinating valid governmental interests’; and this condition of constitutionality always ‘necessarily involved a weighing of the governmental interest involved’.^[581] As in this case the limitations on Konigsberg’s speech rights had only been the incidental results of the exercise of a public power in order to verify the accuracy of his statements that he did not advocate the violent over­throw of government, his first amendment claim fell within this category of ‘general regulatory laws not intended to control the content of speech’. This meant that a balancing enquiry would be both necessary and appro­priate. The majority regarded ‘the State’s interest in having lawyers who are devoted to the law in its broadest sense [...] as clearly sufficient to out­weigh the minimal effect upon free association occasioned by compulsory disclosure’ in the circumstances of the case.^[582]

Justice Black, in his dissent, focused heavily on the majority’s reliance on a ‘balancing test’:

The recognition that California has subjected ‘speech and association to the deterrence of subsequent disclosure’ is, under the First Amendment, sufficient in itself to render the action of the State unconstitutional unless one subscribes to the doctrine that permits constitutionally protected rights to be ‘balanced’ away whenever a majority of the Court thinks that a State might have interest sufficient to justify abridgment of those freedoms. As I have indicated many times before, I do not subscribe to that doctrine for I believe that the First Amendment’s unequivocal com­mand that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in this field.⁸³

Justice Black reiterated his view, also expressed in Barenblatt, that there were essential differences between the kind of ‘balancing’ that the court had undertaken in cases like Schneider ‘as a method for insuring the complete protection of First Amendment freedoms even against purely incidental or inadvertent consequences', and the balancing test now pro­posed for a governmental regulation ‘that is aimed at speech and depends for its application upon the content of speech'.^[583] Balancing in this latter type of case, for Black, turned the principle of ‘Government of the people, by the people and for the people' into a ‘government over the people'.^[584] As in Barenblatt, Justice Black went on to argue that even if he would be able to accept the idea that ‘balancing' would be proper in the case, he would not be able to support the decision. Under the majority's ‘penurious bal­ancing test', the interest of the government had been ‘inflated out of all proportion', while the societal interest in free speech had again not been given its due weight.^[585]

4. Beyond the balancing debate

With Barenblatt and Konigsberg, the judicial interchange on balancing in free speech cases had reached its apogee.^[586] The Justices did return to the theme on a few more occasions. In a later major communism case, Communist Party v. Subversive Activities Control Board (1961),^[587] Justice Black rehearsed his by now familiar objections, but in a noticeably more defeatist tone. Summing up his critique of a majority opinion by Justice Frankfurter that accorded a role to balancing,^[588] he wrote ‘I see no pos­sible way to escape the fateful consequences of a return to an era in which all governmental critics had to face the probability of being sent to jail except for this Court to abandon what I consider to be the dangerous con­stitutional doctrine of “balancing” to which the Court is at present adher­ing'.^[589] Balancing language was also used in a number of cases involving not communism, but civil rights activists who had been persecuted in the South through very similar techniques, such as the compulsory disclos­ure of membership.⁹¹ Finally, Chief Justice Warren, towards the end of his tenure, provided a coda to the balancing debate in his 1967 decision in United States v. Robe/.^[590] Holding unconstitutional on the ground of first amendment ‘overbreadth’ a compulsory registration requirement for members of communist organizations, the Chief Justice, in the final foot­note of his opinion for the Court, seemed to offer a comprehensive rejec­tion of balancing as a method under the first amendment:

It has been suggested that this case should be decided by ‘balancing’ the governmental interest [...] against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed [...] [W]ehave confined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. In making this determination, we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment. But we have in no way ‘balanced’ those respective interests.^[591]

Justice Black did not dissent from this statement for a unanimous Court.

The end of this ‘balancing war’ between the Justices did not, however, mean an end to the discourse of balancing in constitutional rights cases. The Court itself over the following years frequently revisited and devel­oped first amendment doctrine using the language of balancing. In 1968, for example, in the case of United States v. O’Brien, the Court constructed an explicit balancing test to deal with instances of so-called ‘symbolic conduct’ - in O’Brien’s case: the burning of his military draft card on the steps of the South Boston Court House in violation of a federal law pro­hibiting the destruction of such cards.^[592] And in 1980, the Court developed an explicit ‘four-part balancing test’ to deal with first amendment cases in which the relevant speech was of a ‘commercial’ nature.^[593]

The conclusion of the Frankfurter/Harlan v. Black/Douglas debate also marked the start of a rise of academic interest in the topic of judicial bal­ancing in the constitutional rights context that has continued to this day. From the early-mid 1960s onwards, a growing number of law review art­icles appeared that focused principally, or even solely, on the theme of judicial balancing, in the free speech context,⁹⁶ or with regard to consti­tutional rights adjudication generally.⁹⁷ ‘Balancing' rapidly became one of the most prominent frameworks for understanding free speech issues and other problems of constitutional rights adjudication - a position that it still holds today.⁹⁸

C.