1st Amendment

Madison’s version of the speech and presss clauses, introduced in the House of Representatives on June 8, 1789, provided: “The people shall not be 

 deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks 

1 The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to 

 make it read: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good,

 and to apply to the Government for redress of grievances, shall not be infringed.” 2 In this form it went to the Senate, which rewrote it to read:

 “That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and

 consult for their common good, and to petition the government for a redress of grievances.” 3 Subsequently, the religion clauses and these

 clauses were combined by the Senate. 4 The final language was agreed upon in conference.

 Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no

 record of debate in the Senate. 5 In the course of debate, Madison warned against the dangers which would arise “from discussing and

 proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration

 of simple, acknowledged principles, the ratification will meet with but little difficulty.” 6 That the “simple, acknowledged principles” embodied in

 the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such

 spare language. Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone.

          1021          "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints

 upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what

 sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper,

 mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was

 formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the

 arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any

 dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary

 for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals

 is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or

 inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the

 crime which society corrects.”

          1022         7 Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment, 8

 it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act 9 and the use by the

 Adams Administration of the Act to prosecute its political opponents, 10 something of a libertarian theory of freedom of speech and 

 press, 11 which, however much the Jeffersonians may have departed from it upon assuming power, 12 was to blossom into the theory

 undergirding Supreme Court First Amendment jurisprudence in modern times. Full acceptance of the theory that the Amendment operates not

 only to bar most prior restraints of expression but subsequent punishment of all but a narrow range of expression, in political discourse and

 indeed in all fields of expression, dates from a quite recent period, although the Court’s movement toward that position began in its

 consideration of limitations on speech and press in the period following World War I. 13

          1023          Thus, in 1907 Justice Holmes could observe that even if the Fourteenth Amendment embodied prohibitions similar to the

 First Amendment, “still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose

 of such constitutional provisions is ‘to prevent all such previous restraints upon publications as had been practiced by other governments,’ and

 they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare . . . . The preliminary freedom

 extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of

 criminal libel apart from statute in most cases, if not in all.” 14 But as Justice Holmes also observed, “[t]here is no constitutional right to

 have all general propositions of law once adopted remain unchanged.” 15  But in Schenck v. United States, 16 the first of the post–

 World War I cases to reach the Court, Justice Holmes, in the opinion of the Court, while upholding convictions for violating the Espionage

 Act by attempting to cause insubordination in the military service by circulation of leaflets, suggested First Amendment restraints on

 subsequent punishment as well as prior restraint.

          1024          "It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints although to

 prevent them may have been the main purpose . . . . We admit that in many places and in ordinary times the defendants in saying all that was

 said in the circular would have been within their constitutional rights. But the character of every act depends upon 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. . . .

 The question in every case is whether the words used are used in 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.” Justice Holmes along with Justice Brandeis soon went into dissent in

 their views that the majority of the Court was misapplying the legal standards thus expressed to uphold suppression of speech which offered

 no threat of danger to organized institutions. 17 But it was with the Court’s assumption that the Fourteenth Amendment restrained the power

 of the States to suppress speech and press that the doctrines developed. 18 At first, Holmes and Brandeis remained in dissent, but in 

 Fiske v. Kansas, 19 the Court sustained a First Amendment type of claim in a state case, and in Stromberg v. California, 20 a state law

 was voided on grounds of its interference with free speech. 21 State common law was also voided, the Court in an opinion by

 Justice Black asserting that the First Amendment enlarged protections for speech, press, and religion beyond those enjoyed under English

 common law. 22 Development over the years since has been uneven, but by 1964 the Court could say with unanimity: “we consider this case 

 against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and

 wide–open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials, 23 

          1025          And in 1969, it was said that the cases “have fashioned the principle that the constitutional guarantees of free speech and

 free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed

 to inciting or producing imminent lawless action and is likely to incite or produce such action.” 24 This development and its myriad applications

 are elaborated in the following sections.

   Freedom of Expression: The Philosophical Basis 

 Probably no other provision of the Constitution has given rise to so many different views with respect to its underlying philosophical

 foundations, and hence proper interpretive framework, as has the guarantee of freedom of expression—the free speech and free press

 clauses. 25 The argument has been fought out among the commentators. “The 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.” 26 Some of the commentators argue in behalf of a complex of values, none of which by itself is sufficient to support a broad

–based protection of freedom of expression. 27

          1026          Others would limit the basis of the First Amendment to one only among a constellation of possible values and

 would therefore limit coverage or degree of protection of the speech and press clauses. For example, one school of thought believes that,

 because of the constitutional commitment to free self–government, only political speech is within the core protected area, 28 although some

 commentators tend to define more broadly the concept of “political” than one might suppose from the word alone. Others recur to the writings

 of Milton and Mill and argue that protecting speech, even speech in error, is necessary to the eventual ascertainment of the truth, through

 conflict of ideas in the marketplace, a view skeptical of our ability to ever know the truth. 29 A broader–grounded view is variously expounded

 by scholars who argue that freedom of expression is necessary to promote individual self–fulfillment, such as the concept that when speech is

 freely chosen by the speaker to persuade others it defines and expresses the “self,” promotes his liberty, 30 or the concept of “self–

 realization,” the belief that free speech enables the individual to develop his powers and abilities and to make and influence decisions

 regarding his destiny. 31 The literature is enormous and no doubt the Justices as well as the larger society are influenced by it, and yet the

 decisions, probably in large part because they are the collective determination of nine individuals, seldom clearly reflect a principled and

 consistent acceptance of any philosophy.

   Freedom of Expression: Is There a Difference Between Speech and Press 

 Utilization of the single word “expression” to reach speech, press, petition, association, and the like, raises the central question of whether the

 free speech clause and the free press clause are coextensive; does one perhaps reach where the other does not?

          1027          It has been much debated, for example, whether the “institutional press” may assert or be entitled to greater freedom from

 governmental regulations or restrictions than are non–press individuals, groups, or associations. Justice Stewart has argued: “That the

 First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of

 the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press

 in performing it effectively.” 32 But as Chief Justice Burger wrote: “The Court has not yet squarely resolved whether the Press Clause

 confers upon the ‘institutional press’ any freedom from government restraint not enjoyed by all others.” 33 

 Several Court holdings do firmly point to the conclusion that the press clause does not confer on the press the power to compel government

 to furnish information or to give the press access to information that the public generally does not have. 34 Nor in many respects is the press

 entitled to treatment different in kind than the treatment any other member of the public may be subjected to. 35 “Generally applicable laws do

 not offend the First Amendment simply because their enforcement against the press has incidental effects.” 36 Yet, it does seem clear that to

 some extent the press, because of the role it plays in keeping the public informed and in the dissemination of news and information, is entitled

 to particular if not special deference that others are not similarly entitled to, that its role constitutionally entitles it to governmental “sensitivity,”

 to use Justice Stewart’s word. 37

        1028          What difference such a recognized “sensitivity” might make in deciding cases is difficult to say.

 The most interesting possibility lies in the area of First Amendment protection of good faith defamation. 38 Justice Stewart argued that the

 Sullivan privilege is exclusively a free press right, denying that the “constitutional theory of free speech gives an individual any immunity from

 liability for libel or slander.” 39 To be sure, in all the cases to date that the Supreme Court has resolved, the defendant has been, in some

 manner, of the press, 40 but the Court’s decision that corporations are entitled to assert First Amendment speech guarantees against federal

 and, through the Fourteenth Amendment, state regulations causes the evaporation of the supposed “conflict” between speech clause

 protection of individuals only and of press clause protection of press corporations as well as of press individuals. 41 The issue, the Court 

 wrote, was not what constitutional rights corporations have but whether the speech which is being restricted is expression that the First

 Amendment protects because of its societal significance. Because the speech concerned the enunciation of views on the conduct of

 governmental affairs, it was protected regardless of its source; while the First Amendment protects and fosters individual self– expression as a

 worthy goal, it also and as important affords the public access to discussion, debate, and the dissemination of information and ideas. Despite

 Bellotti’s emphasis upon the nature of the contested speech being political, it is clear that the same principle,

          1029          the right of the public to receive information, governs nonpolitical, corporate speech. 42

 With some qualifications, therefore, it is submitted that the speech and press clauses may be analyzed under an umbrella “expression”

 standard, with little, if any, hazard of missing significant doctrinal differences.

  The Doctrine of Prior Restraint 

  “[L]iberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively,

 immunity from previous restraints or censorship.” 43 “Any system of prior restraints of expression comes to this Court bearing a heavy

 presumption against its constitutional validity.” 44 Government “thus carries a heavy burden of showing justification for the imposition of such a

 restraint.” 45 Under the English licensing system, which expired in 1695, all printing presses and printers were licensed and nothing could be

 published without prior approval of the state or church authorities. The great struggle for liberty of the press was for the right to publish without

 a license that which for a long time could be published only with a license. 46 

 The United States Supreme Court’s first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson, 47 in which

 a five–to–four majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to

 have published or circulated an “obscene, lewd and lascivious” or a “malicious, scandalous and defamatory” issue. An injunction had been

 issued after the newspaper in question had printed a series of articles tying local officials to gangsters. While the dissenters maintained that

 the injunction constituted no prior restraint, inasmuch as that doctrine applied to prohibitions of publication without advance approval of an

 executive official, 48 the majority deemed the difference of no consequence, since in order to avoid a contempt citation the newspaper would

 have to clear future publications in advance with the judge. 49

          1030          Liberty of the press to scrutinize closely the conduct of public affairs was essential, said Chief Justice Hughes for the

 Court. “[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied,

 crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental

 security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press,

 especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less

 necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as

 may exist is the appropriate remedy, consistent with constitutional privilege.” 50 The Court did not undertake to explore the kinds of

 restrictions to which the term “prior restraint” would apply nor to do more than assert that only in “exceptional circumstances” would prior

 restraint be permissible. 51 Nor did subsequent cases substantially illuminate the murky interior of the doctrine. The doctrine of prior restraint

 was called upon by the Court as it struck down a series of loosely drawn statutes and ordinances requiring licenses to hold meetings and

 parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them, and as it voided other restrictions

 on First Amendment rights. 52 The doctrine that generally emerged was that permit systems—prior licensing, if you will—were constitutionally

 valid so long as the discretion of the issuing official was limited to questions of times, places, and manners. 53

          1031          The most recent Court encounter with the doctrine in the national security area occurred when the Government attempted

 to enjoin press publication of classified documents pertaining to the Vietnam War 54 and, although the Court rejected the effort, at least five

 and perhaps six Justices concurred on principle that in some circumstances prior restraint of publication would be constitutional. 55 But no

 cohesive doctrine relating to the subject, its applications, and its exceptions has yet emerged.

 Injunctions and the Press in Fair Trial Cases.—Confronting a claimed conflict between free press and fair trial guarantees, the Court

 unanimously set aside a state court injunction barring the publication of information that might prejudice the subsequent trial of a criminal

 defendant. 56 Though agreed on result, the Justices were divided with respect to whether “gag orders” were ever permissible and if so what

 the standards for imposing them were.

          1032         The opinion of the Court utilized the Learned Hand formulation of the "clear and present danger" test 57 and considered as

 factor in any decision on the imposition of a restraint upon press reporters (a) the nature and extent of pretrial news coverage, (b) whether

 other measures were likely to mitigate the harm, and (c) how effectively a restraining order would operate to prevent the threatened danger.58

 One seeking a restraining order would have a heavy burden to meet to justify such an action, a burden that could be satisfied only on a

 showing that with a prior restraint a fair trial would be denied, but the Chief Justice refused to rule out the possibility of showing the kind of

 threat that would possess the degree of certainty to justify restraints. 59 Justice Brennan’s major concurring opinion flatly took the position

 that such restraining orders were never permissible. Commentary and reporting on the criminal justice system is at the core of 

 First Amendment values, he would hold, and secrecy can do so much harm “that there can be no prohibition on the publication by the press of

 any information pertaining to pending judicial proceedings or the operation of the criminal justice system, no matter how shabby the means by

 which the information is obtained.” 60 The extremely narrow exceptions under which prior restraints might be permissible relate to probable

 national harm resulting from publication, the Justice continued; because the trial court could adequately protect a defendant’s right to a fair

 trial through other means even if there were conflict of constitutional rights the possibility of damage to the fair trail right would be so

 speculative that the burden of justification could not be met. 61

          1033         While the result does not foreclose the possibility of future "gag orders," it does lessen the number to be expected

 and shifts the focus to other alternatives for protecting trial rights. 62 On a different level, however, are orders restraining the press as a party

 to litigation in the dissemination of information obtained through pretrial discovery. In Seattle Times Co. v. Rhinehart, 63 the Court

 determined that such orders protecting parties from abuses of discovery require “no heightened First Amendment scrutiny.” 64 Obscenity and

 Prior Restraint.—Only in the obscenity area has there emerged a substantial consideration of the doctrine of prior restraint and the doctrine’s

 use there may be based upon the proposition that obscenity is not a protected form of expression. 65 In Kingsley Books v. Brown, 66 

 the Court upheld a state statute which, while it embodied some features of prior restraint, was seen as having little more restraining effect

 than an ordinary criminal statute; that is, the law’s penalties applied only after publication. But in Times Film Corp. v. City of Chicago, 67 

 a divided Court specifically affirmed that, at least in the case of motion pictures, the First Amendment did not proscribe a licensing system

 under which a board of censors could refuse to license for public exhibition films which it found to be obscene. Books and periodicals may also

 be subjected to some forms of prior restraint, 68 but the thrust of the Court’s opinions in this area with regard to all forms of communication

 has been to establish strict standards of procedural protections to ensure that the censoring agency bears the burden of proof on obscenity,

 that only a judicial order can restrain exhibition, and that a prompt final judicial decision is assured. 69 

          1034         Subsequent Punishment: Clear and Present Danger and Other Tests 

 Granted that the context of the controversy over freedom of expression at the time of the ratification of the First Amendment was almost 

 exclusively limited to the problem of prior restraint, still the words speak of laws “abridging” freedom of speech and press and the modern

 adjudicatory disputes have been largely fought out over subsequent punishment. “The mere exemption from previous restraints cannot be all

 that is secured by the constitutional provisions, inasmuch as of words to be uttered orally there can be no previous censorship, and the liberty

 of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish what he

 pleased, the public authorities might nevertheless punish him for harmless publications. . . .

“[The purpose of the speech–press clauses] has evidently been to protect parties in the free publication of matters of public concern, to secure

 their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any

 person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have

 conferred upon them. . . . The evils to be prevented were not the censorship of the press merely, but any action of the government by means

 of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an

 intelligent exercise of their rights as citizens.” 70 A rule of law permitting criminal or civil liability to be imposed upon those who speak or write

 on public issues and their superintendence would lead to “self–censorship” by all which would not be relieved by permitting a defense of truth.

 “Under such a rule, would–be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and

 even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so . . . . The rule thus 

 dampens the vigor and limits the variety of public debate.” 71

          1035          “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your

 power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow

 opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do

 not care whole– heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset

 many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good

 desired is better reached by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of

 the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our

 Constitution.” 72 “Those who won our independence believed that the final end of the State was to make men free to develop their faculties;

 and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. 

 They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and

 to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion

 would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the

 greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the

 American government. 

 They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of

 punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression

 breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and

 proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public

 discussion, they eschewed silence coerced by law—the argument of force in its worst form.

          1036         Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and

 assembly should be guaranteed.” 73 "But, although the rights of free speech and assembly are fundamental, they are not in their nature

 absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the State from destruction 

or from serious injury, political, economic or moral.” 74 The fixing of a standard is necessary, by which it can be determined what degree of evil

 is sufficiently substantial to justify resort to abridgment of speech and press and assembly as a means of protection and how clear and

 imminent and likely the danger is. 75 That standard has fluctuated over a period of some fifty years now and it cannot be asserted with a great

 degree of confidence that the Court has yet settled on any firm standard or any set of standards for differing forms of expression. 76

 The cases are instructive of the difficulty.

 Clear and Present Danger.—Certain expression, oral or written, may incite, urge, counsel, advocate, or importune the commission of criminal

 conduct; other expression, such as picketing, demonstrating, and engaging in certain forms of “symbolic” action may either counsel the

 commission of criminal conduct or itself constitute criminal conduct. Leaving aside for the moment the problem of “speech–plus”

 communication, it becomes necessary to determine when expression that may be a nexus to criminal conduct is subject to punishment and

 restraint. At first, the Court seemed disposed in the few cases reaching it to rule that if the conduct could be made criminal, the advocacy of or

 promotion of the conduct could be made criminal. 77 Then, in Schenck v. United States, 78 in which defendants had been convicted of

 seeking to disrupt recruitment of military personnel by dissemination of certain leaflets, Justice Holmes formulated the “clear and present

 danger” test which has ever since been the starting point of argument. “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.” 79 The convictions were unanimously affirmed.

          1037          One week later, the Court again unanimously affirmed convictions under the same Act with Justice Holmes speaking.

 “[W]e think it necessary to add to what has been said in Schenck v. United States . . . only that the First Amendment while prohibiting

 legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of

 language. 

 We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal

 the counseling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.” 80 

 And in Debs v. United States, 81 Justice Holmes was found referring to “the natural and intended effect” and “probable effect” of the

 condemned speech in common–law tones.

 But in Abrams v. United States, 82 Justices Holmes and Brandeis dissented upon affirmance of the convictions of several alien

 anarchists  who had printed leaflets seeking to encourage discontent with United States participation in the War. 

 The majority simply referred to Schenck and Frohwerk to rebut the First Amendment argument, but the dissenters urged that the Government

 had made no showing of a clear and present danger. Another affirmance by the Court of a conviction, the majority simply saying that “[t]he

 tendency of the articles and their efficacy were enough for the offense,” drew a similar dissent. 83 Moreover, in Gitlow v. New York, 84 a

 conviction for distributing a manifesto in violation of a

 law making it criminal to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or

 violence, the Court affirmed in the absence of any evidence regarding the effect of the distribution and in the absence of any contention that it

 created any immediate threat to the security of the State. In so doing, the Court discarded Holmes’ test. “It is clear that the question in such

 cases [as this] is entirely different from that involved in those cases where the statute merely prohibits certain acts involving the danger of

 substantive evil, without any reference to language itself, and it is sought to apply its provisions to language used by the defendant for the

 purpose of bringing about the prohibited results. . . . In such cases it has been held that the general provisions of the statute may be

 constitutionally applied to the specific utterance of the defendant if its natural tendency and probable effect was to bring about the substantive

 evil which the legislative body might prevent. . . .

          1038          [T]he general statement in the Schenck Case . . . was manifestly intended . . . to apply only in cases of this class, and has no

 application to those like the present, where the legislative body itself has previously determined the danger of substantive evil arising from

 utterances of a specified character.” 85 Thus, a state legislative determination “that utterances advocating the overthrow of organized

 government by force, violence, and unlawful means, are so inimical to the general welfare, and involve such danger of substantive evil that

 they may be penalized in the exercise of its police power” was almost conclusive on the Court. 86 It is not clear what test, if any, the majority

 would have utilized, although the “bad tendency” test has usually been associated with the case. In Whitney v. California, 87 the Court

 affirmed a conviction under a criminal syndicalism statute based on defendant’s association with and membership in an organization which

 advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves “such danger to the

 public peace and the security of the State” was entitled to almost conclusive weight. In a technical concurrence which was in fact a dissent

 from the opinion of the Court, Justice Brandeis restated the “clear and present danger” test. “[E]ven advocacy of violation [of the law] . . . 

 is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy

 would be immediately acted on . . . . In order to support a finding of clear and present danger it must be shown either that immediate serious

 violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then

 contemplated.” 88 The Adoption of Clear and Present Danger.—

          1039         The Court did not invariably affirm convictions during this period in cases like those under consideration. In Fiske v. Kansas,

 89 it held that a criminal syndicalism law had been invalidly applied to convict one against whom the only evidence was the “class struggle”

 language of the constitution of the organization to which he belonged. A conviction for violating a “red flag” law was voided as the statute was

 found unconstitutionally vague. 90 Neither case mentioned clear and present danger. An “incitement” test seemed to underlie the opinion in

 De Jonge v. Oregon, 91 upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an

 organization which was said to advocate violence as a political method, although the meeting was orderly and no violence was advocated

 during it. In Herndon v. Lowry, 92 the Court narrowly rejected the contention that the standard of guilt could be made the “dangerous

 tendency” of one’s words, and indicated that the power of a State to abridge speech “even of utterances of a defined character must find its

 justification in a reasonable apprehension of danger to organized government.”

Finally, in Thornhill v. Alabama, 93 a state anti–picketing law was invalidated because “no clear and present danger of destruction of life or

 property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who

 approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter.” During the same term, the Court

 reversed the breach of the peace conviction of a Jehovah’s Witness who had played an inflammatory phonograph record to persons on the

 street, the Court discerning no clear and present danger of disorder. 94 

The stormiest fact situation faced by the Court in applying clear and present danger occurred in Terminiello v. City of Chicago, 95 in which a

 five–to–four majority struck down a conviction obtained after the judge instructed the jury that a breach of the peace could be committed by

 speech that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” “A function of free speech

 under our system of government,” wrote Justice Douglas for the majority, “is to invite dispute.

          1040          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, . . . is nevertheless

 protected against censorship 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.” 96 The dissenters focused on the disorders which had actually occurred as a result of 

 Terminiello’s speech, Justice Jackson saying: “Rioting is a substantive evil, which I take it no one will deny that the State and the City have

  the right and the duty to prevent and punish . . . . In this case the evidence proves beyond dispute that danger of rioting and violence in

  response to the speech was clear, present and immediate.” 97 The Jackson position was soon adopted in Feiner v. New York, 98 in which 

 Chief Justice Vinson said that “[t]he findings of the state courts as to the existing situation and the imminence of greater disorder coupled

 with petitioner’s deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech.”

 Contempt of Court and Clear and Present Danger.—The period during which clear and present danger was the standard by which to

 determine the constitutionality of governmental suppression of or punishment for expression was a brief one, extending roughly from Thornhill

 to Dennis. 99 But in one area it was vigorously, though not without dispute, applied to enlarge freedom of utterance and it is in this area that it

 remains viable. In early contempt–of–court cases in which criticism of courts had been punished as contempt, the Court generally took the

 position that even if freedom of speech and press was protected against governmental abridgment, a publication tending to obstruct the

 administration of justice was punishable, irrespective of its truth. 100 But in Bridges v. California, 101 in which contempt citations had been

 brought against a newspaper and a labor leader for statements made about pending judicial proceedings, Justice Black for a five–to–four

 Court

          1041          majority began with application of clear and present danger, which he interpreted to require that “the substantive evil must be

 extremely serious and the degree of imminence extremely high before utterances can be punished.” 102 He noted that the “substantive evil

 here sought to be averted . . . appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice.” 

 The likelihood that the court will suffer damage to its reputation or standing in the community was not, Justice Black continued, a

 “substantive evil” which would justify punishment of expression. 103 The other evil, “disorderly and unfair administration of justice,” “is more

 plausibly associated with restricting publications which touch upon pending litigation.” But the “degree of likelihood” of the evil being

 accomplished was not “sufficient to justify summary punishment.” 104 In dissent, Justice Frankfurter accepted the application of clear 

 and present danger, but he interpreted it as meaning no more than a “reasonable tendency” test. “Comment however forthright is one thing.

 Intimidation with respect to specific matters still in judicial suspense, quite another. . . . A publication intended to teach the judge a lesson, or

 to vent spleen, or to discredit him, or to influence him in his future conduct, would not justify exercise of the contempt power. . . . It must refer

 to a matter under consideration and constitute in effect a threat to its impartial disposition. It must be calculated to create an atmospheric

 pressure incompatible with rational, impartial adjudication. But to interfere with justice it need not succeed. As with other offenses, the state

 should be able to proscribe attempts that fail because of the danger that attempts may succeed.” 105 

 A unanimous Court next struck down the contempt conviction arising out of newspaper criticism of judicial action already taken, although

 one case was pending after a second indictment. Specifically alluding to clear and present danger, while seeming to regard it as stringent a 

 test as Justice Black had in the prior case, Justice Reed wrote that the danger sought to be averted, a “threat to the impartial and orderly

 administration of justice,” “has not the clearness and immediacy necessary to close the door of permissible public comment.” 106 Divided

 again, the Court a year later set aside contempt convictions based on publication,

         1042          while a motion for a new trial was pending, of inaccurate and unfair accounts and an editorial concerning the trial of a civil

 case. “The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must

 constitute 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.” 107  In Wood v. Georgia, 108 the Court again divided, applying clear and present danger to upset the contempt

 conviction of a sheriff who had been cited for criticizing the recommendation of a county court that a grand jury look into African American

 bloc voting, vote buying, and other alleged election irregularities. No showing had been made, said Chief Justice Warren, of “a

 substantive evil actually designed to impede the course of justice.” The case presented no situation in which someone was on trial, there was

 no judicial proceeding pending that might be prejudiced, and the dispute was more political than judicial. 109 A unanimous Court recently

 seems to have applied the standard to set aside an contempt conviction of a defendant who, arguing his own case, alleged before the jury

 that the trial judge by his bias had prejudiced his trial and that he was a political prisoner. Though the defendant’s remarks may have been

 disrespectful of the court, the Supreme Court noted that “[t]here is no indication . . . that petitioner’s statements were uttered in a boisterous

 tone or in any wise actually disrupted the court proceeding” and quoted its previous language about the imminence of the threat necessary to

 constitute contempt. 110 Clear and Present Danger Revised: Dennis.—In Dennis v. United States, 111 the Court sustained the

 constitutionality of the Smith Act, 112 which proscribed advocacy of the overthrow by force and violence of the government of the United

 States, and upheld convictions under it.

          1043          Dennis’ importance here is in the rewriting of the clear and present danger test. For a plurality of four, 

 Chief Justice Vinson acknowledged that the Court had in recent years relied on the Holmes–Brandeis formulation of clear and

 present danger without actually overruling the older cases that had rejected the test; but while clear and present danger was the proper

 constitutional test, that “shorthand phrase should [not] be crystallized into a rigid rule to be applied inflexibly without regard to the

 circumstances of each case.” It was a relative concept. Many of the cases in which it had been used to reverse convictions had turned “on 

 the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech.” 113 Here, in

 contrast, “[o]verthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit 

 speech.” 114 And in combating that threat, the Government need not wait to act until the putsch is about to be executed and the plans are set

 for action. “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 circumstances permit, action by the Government is required.” 115 Therefore, what

 does the phrase “clear and present danger” import for judgment? “Chief Judge Learned Hand, writing for the majority 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.’ 183 F.2d at 212. 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.” 116 The “gravity of the evil,

 discounted by its improbability” was found to justify the convictions. 117

          1044          Balancing.—Clear and present danger as a test, it seems clear, was a pallid restriction on governmental power after

 Dennis and it virtually disappeared from the Court’s language over the next twenty years. 118 Its replacement for part of this period was the

 much disputed “balancing” test, which made its appearance in the year prior to Dennis in American Communications Ass’n v. Douds. 119

 There the Court sustained a law barring from access to the NLRB any labor union if any of its officers failed to file annually an oath disclaiming

 membership in the Communist Party and belief in the violent overthrow of the government. 120 For the Court, Chief Justice Vinson

 rejected reliance on the clear and present danger test. “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. Section 9 (h), in other words, does not interfere with speech because Congress fears the consequences of speech; it regulates harmful

 conduct which Congress has determined is carried on by persons who may be identified by their political affiliations and beliefs. The Board

 does not contend that political strikes . . . are the present or impending products of advocacy of the doctrines of Communism or the expression

 of belief in overthrow of the Government by force. On the contrary, it points out that such strikes are called by persons

          1045          who, so Congress has found, have the will and power to do so without advocacy.” 121 

The test, rather, must be one of balancing of interests. “When particular conduct is regulated in the interest of public order, and the regulation

 results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests 

demands the greater protection under the particular circumstances presented.” 122 Inasmuch as the interest in the restriction, the

 government’s right to prevent political strikes and the disruption of commerce, is much more substantial than the limited interest on the other

 side in view of the relative handful of persons affected in only a partial manner, the Court perceived no difficulty upholding the statute. 123 

 Justice Frankfurter in Dennis 124 rejected the applicability of clear and present danger and adopted a balancing test. “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.” 125 But the “careful weighing of conflicting interests” 126 not only placed in the scale the disparately–weighed interest of

 government in self–preservation and the interest of defendants in advocating illegal action, which alone would have determined the balance,

 it also involved the Justice’s philosophy of the “confines of the judicial process” within which the role of courts, in First Amendment litigation as

 in other, is severely limited. Thus, “[f]ull responsibility” may not be placed in the courts “to balance the relevant factors and ascertain which

 interest in the circumstances [is] to prevail.” “Courts are not representative bodies. They are not designed to be a good reflex of a democratic

 society.” Rather, “[p]rimary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the

 Congress.”127 Therefore, after considering at some length the factors to be balanced, Justice Frankfurter concluded: “It is not for us to

 decide how we would adjust the clash of interests which this case presents were the primary responsibility for reconciling it ours. Congress

 has determined that the danger created by advocacy of overthrow justifies the ensuing restriction on freedom of speech.

          1046         The determination was made after due deliberation, and the seriousness of the congressional purpose is attested by the

 volume of legislation passed to effectuate the same ends.” 128 Only if the balance struck by the legislature is “outside the pale of fair

 judgment” 129 could the Court hold that Congress was deprived by the Constitution of the power it had exercised. 130 

Thereafter, during the 1950’s and the early 1960’s, the Court utilized the balancing test in a series of decisions in which the issues were not,

 as they were not in Douds and Dennis, matters of expression or advocacy as a threat but rather were governmental inquiries into associations

 and beliefs of persons or governmental regulation of associations of persons, based on the idea that beliefs and associations provided

 adequate standards for predicting future or intended conduct that was within the power of government to regulate or to prohibit. Thus, in the 

leading case on balancing, Konigsberg v. State Bar of California, 131 the Court upheld the refusal of the State to certify an applicant for 

admission to the bar. Required to satisfy the Committee of Bar Examiners that he was of “good moral character,” Konigsberg testified that he

 did not believe in the violent overthrow of the government and that he had never knowingly been a member of any organization which 

advocated such action, but he declined to answer any question pertaining to membership in the Communist Party.

For the Court, Justice Harlan began by asserting that freedom of speech and association were not absolutes but were subject to various

 limitations. Among the limitations, “general regulatory statutes, not intended to control the content of speech but incidentally limiting its

 unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass,

 when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily

 involved a weighing of the governmental interest involved.” 132 The governmental interest involved was the assurance that those admitted to

 the practice of law were committed to lawful change in society and it was proper for the State to believe that one possessed of “a belief, firm

 enough to be carried over into advocacy, in the use of illegal means to change the form” of government did not meet the standard of fitness.

         1047        133 On the other hand, the First Amendment interest was limited because there was “minimal effect upon free association

 occasioned by compulsory disclosure” under the circumstances. “There is here no likelihood that deterrence of association may result from

 foreseeable private action . . . for bar committee interrogations such as this are conducted in private. . . . Nor is there the possibility that the

 State may be afforded the opportunity for imposing undetectable arbitrary consequences upon protected association . . . for a bar applicant’s

 exclusion by reason of Communist Party membership is subject to judicial review, including ultimate review by this Court, should it appear that

 such exclusion has rested on substantive or procedural factors that do not comport with the Federal Constitution.” 134 

Balancing was used to sustain congressional and state inquiries into the associations and activities of individuals in connection with allegations

 of subversion 135 and to sustain proceedings against the Communist Party and its members. 136 In certain other cases, involving state 

attempts to compel the production of membership lists of the National Association for the Advancement of Colored People and to investigate

 that organization, use of the balancing test resulted in a finding that speech and associational rights outweighed the governmental interest

 claimed. 137 The Court used a balancing test in the late 1960’s to protect the speech rights of a public employee who had criticized his

 employers. 138 On the other hand, balancing was not used when the Court struck down restrictions on receipt of materials mailed from

 Communist countries, 139 and it was similarly not used in cases involving picketing, pamphleteering, and demonstrating in public places.

140 But the only case in which it was specifically rejected involved a statutory regulation like those which had given rise to the test in the first

place.

          1048          United States v. Robel 141 held invalid under the First Amendment a statute which made it unlawful for any member of an

 organization which the Subversive Activities Control Board had ordered to register to work in a defense establishment. 142 Although 

 Chief Justice Warren for the Court asserted that the vice of the law was that its proscription operated per se “without any need to

 establish that an individual’s association poses the threat feared by the Government in proscribing it,” 143 the rationale of the decision was 

 not clear and present danger but the existence of less restrictive means by which the governmental interest could be accomplished. 144 In a

 concluding footnote, the Court said: “It has been suggested that this case should be decided by ‘balancing’ the governmental interests . . .

 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. Faced with a clear conflict between a federal statute enacted in the interests of national security and an individual’s exercise of

 his First Amendment rights, we have 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. We have ruled only that the Constitution requires that the conflict between congressional power and 

 individual rights be accommodated by legislation drawn more narrowly to avoid the conflict.” 145 

 The “Absolutist” View of the First Amendment, With a Note on “Preferred Position”.—During much of this period, the opposition to the

 balancing test was led by Justices Black and Douglas, who espoused what may be called an “absolutist” position, denying the 

 government any power to abridge speech. But the beginnings of such a philosophy may be gleaned in much earlier cases in which a rule of

 decision based on a preference for First Amendment liberties was prescribed. Thus, Chief Justice Stone in his famous Carolene Products

 “footnote 4” suggested that the ordinary presumption of constitutionality which prevailed when economic

             1049          regulation was in issue might very well be reversed when legislation which restricted “those political processes which can

 ordinarily be expected to bring about repeal of undesirable legislation” is called into question. 146 Then in Murdock v. Pennsylvania, 147 in

 striking down a license tax on religious colporteurs, the Court remarked that “[f]reedom of press, freedom of speech, freedom of religion are in

 a preferred position.” Two years later the Court indicated that its decision with regard to the constitutionality of legislation regulating 

individuals is “delicate . . . [especially] 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 sanctity

 and a sanction not permitting dubious intrusions.” 148 The “preferred–position” language was sharply attacked by Justice Frankfurter in 

Kovacs v. Cooper 149 and it dropped from the opinions, although its philosophy did not.

Justice Black expressed his position in many cases but his Konigsberg dissent contains one of the lengthiest and clearest expositions of it. 

150 That a particular governmental regulation abridged speech or deterred it was to him “sufficient to render the action of the State

 unconstitutional” because he did not subscribe “to the doctrine that permits constitutionally protected rights to be ‘balanced’ away whenever a

 majority of this Court thinks that a State might have an interest sufficient to justify abridgment of those freedoms . . . 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.” 151 As he elsewhere wrote: “First Amendment rights are

 beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment,

          1050           humiliation, or exposure by government.” 152 But the “First and Fourteenth Amendments . . . take away from government,

 state and federal, all power to restrict freedom of speech, press and assembly where people have a right to be for such purpose. This does not

 mean however, that these amendments also grant a constitutional right to engage in the conduct of picketing or patrolling whether on publicly

 owned streets or on privately owned property.” 153 Thus, in his last years on the Court, the Justice, while maintaining an “absolutist” position,

 increasingly drew a line between “speech” and “conduct which involved communication.” 154 

Of Other Tests and Standards: Vagueness, Overbreadth, Least Restrictive Means, and Others.—In addition to the foregoing tests, the Court 

has developed certain standards that are exclusively or primarily applicable in First Amendment litigation. Some of these, such as the doctrines

 prevalent in the libel and obscenity areas, are very specialized, 155 but others are not. Vagueness is a due process vice which can be brought

 into play with regard to any criminal and many civil statutes, 156 but as applied in areas respecting expression it also encompasses concern

 that protected conduct will be deterred out of fear that the statute is capable of application to it. Vagueness has been the basis for voiding

 numerous such laws, especially in the fields of loyalty oaths, 157 obscenity, 158 and restrictions on public demonstrations. 159 It is usually

 combined with the overbreadth doctrine,

             1051          which focuses on the  need for precision in drafting a statute that may affect First Amendment

 rights; 160 an overbroad statute that sweeps under its coverage both protected and unprotected speech and conduct will normally be struck

 down as facially invalid, although in a non–First Amendment situation the Court would simply void its application to protected conduct. 161

 Similarly, and closely related at least to the overbreadth doctrine, the Court has insisted that when the government seeks to carry out a

 permissible goal and it has available a variety of effective means to the given end, it must choose the measure which least interferes with

 rights of expression. 162 Also, the Court has insisted that regulatory measures which bear on expression must relate to the achievement of 

the purpose asserted as its justification. 163 The prevalence of these standards and tests in this area would appear to indicate that while

 “preferred position” may have disappeared from the Court’s language it has not disappeared from its philosophy.

Is There a Present Test?—Complexities inherent in the myriad varieties of expression encompassed by the First Amendment guarantees of 

speech, press, and assembly probably preclude any single standard.

          1052          For certain forms of expression for which protection is claimed, the Court engages in “definitional balancing” to determine

 that those forms are outside the range of protection. 164 Balancing is in evidence to enable the Court to determine whether certain covered

 speech is entitled to protection in the particular context in which the question arises. 165 Utilization of vagueness, overbreadth and less

 intrusive means may very well operate to reduce the occasions when questions of protection must be answered squarely on the merits. 

What is observable, however, is the re–emergence, at least in a tentative fashion, of something like the clear and present danger standard in

 advocacy cases, which is the context in which it was first developed. Thus, in Brandenburg v. Ohio, 166 a conviction under a criminal

 syndicalism statute of advocating the necessity or propriety of criminal or terroristic means to achieve political change was reversed. 

The prevailing doctrine developed in the Communist Party cases was that “mere” advocacy was protected but that a call for concrete, forcible

 action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected

 association, regardless of the probability of success. 167 In Brandenburg, however, the Court reformulated these and other rulings to mean

 “that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of

 law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such

 action.” 168 The Court has not revisited these is sues since Brandenburg 

      1053          so the long–term significance of the decision is yet to be determined. Freedom of Belief 

The First Amendment does not expressly speak in terms of liberty to hold such beliefs as one chooses, but in both the religion and the

 expression clauses, it is clear, liberty of belief is the foundation of the liberty to practice what religion one chooses and to express oneself as

 one chooses. 169 “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be

170 orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” 

 Speaking in the context of religious freedom, the Court at one point said that while the freedom to act on one’s beliefs could be limited, the

 freedom to believe what one will “is absolute.” 171 But matters are not so simple.

 Flag Salute Cases.—That government generally may not compel a person to affirm a belief is the principle of the second Flag Salute 

Case. 172 In Minersville School District v. Gobitis, 173 the Court upheld the power of the State to expel from its schools certain children, 

Jehovah’s Witnesses, who refused upon religious grounds to join in a flag salute ceremony and recitation of the pledge of allegiance. 

“Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general 

law not aimed at the promotion or restriction of religious beliefs.” 174 But three years later, a six–to–three majority of the Court reversed

 itself. 175

         1054          Justice Jackson for the Court chose to ignore the religious argument and to ground the decision upon freedom of speech.

The state policy, he said, constituted “a compulsion of students to declare a belief. . . . It requires the individual to communicate by word and

 sign his acceptance of the political ideas [the flag] bespeaks.” 176 But the power of a State to follow a policy that “requires affirmation of a 

belief and an attitude of mind” is limited by the First Amendment, which, under the standard then prevailing, required the State to prove that the

 act of the students in remaining passive during the ritual “creates a clear and present danger that would justify an effort even to muffle

 expression.” 177 

However, the principle of Barnette does not extend so far as to bar government from requiring of its employees or of persons seeking 

professional licensing or other benefits an oath generally but not precisely based on the oath required of federal officers, which is set out in the

 Constitution, that the taker of the oath will uphold and defend the Constitution. 178 It is not at all clear, however, to what degree the

 government is limited in probing the sincerity of the person taking the oath. 179 

Imposition of Consequences for Holding Certain Beliefs.—Despite the Cantwell dictum that freedom of belief is absolute, 180 government has

 been permitted to inquire into the holding of certain beliefs and to impose consequences on the believers, primarily with regard to its own

 employees and to licensing certain professions. 181 It is not clear what precise limitations the Court has placed on these practices.

          1055          In its disposition of one of the first cases concerning the federal loyalty security program, the Court of Appeals for the District

 of Columbia asserted broadly that “so far as the Constitution is concerned there is no prohibition against dismissal of Government employees

 because of their political beliefs, activities or affiliations.” 182 On appeal, this decision was affirmed by an equally divided Court, it being

 impossible to determine whether this issue was one treated by the Justices. 183 Thereafter, the Court dealt with the loyalty–security program 

in several narrow decisions not confronting the issue of denial or termination of employment because of beliefs or “beliefs plus.” But the same

 issue was also before the Court in related fields. In American Communications Ass’n v. Douds, 184 the Court was again evenly divided

 over a requirement that, in order for a union to have access to the NLRB, each of its officers must file an affidavit that he neither believed in,

 nor belonged to an organization that believed in, the overthrow of government by force or by illegal means. Chief Justice Vinson thought

 the requirement reasonable because it did not prevent anyone from believing what he chose but only prevented certain people from being 

 officers of unions, and because Congress could reasonably conclude that a person with such beliefs was likely to engage in political strikes 

 and other conduct which Congress could prevent. 185 Dissenting, Justice Frankfurter thought the provision too vague, 186 

 Justice Jackson thought that Congress could impose no disqualification upon anyone for an opinion or belief which had not manifested

  itself in any overt act, 187 and Justice Black thought that government had no power to penalize beliefs in any way. 188

          1056          Finally, in Konigsberg v. State Bar of California, 189 a

 majority of the Court was found supporting dictum in Justice Harlan’s opinion in which he justified some inquiry into beliefs, saying that “[i]t

 would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of 

the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in

 whose hands so largely lies the safekeeping of this country’s legal and political institutions.”

When the same issue returned to the Court years later, three five–to–four decisions left the principles involved unclear. 190 Four Justices

 endorsed the view that beliefs could not be inquired into as a basis for determining qualifications for admission to the bar; 191 four Justices

 endorsed the view that while mere beliefs might not be sufficient grounds to debar one from admission, the States were not precluded from

 inquiring into them for purposes of determining whether one was prepared to advocate violent overthrow of the government and to act on his

 beliefs. 192 The decisive vote in each case was cast by a single Justice who would not permit denial of admission based on beliefs alone but 

would permit inquiry into those beliefs to an unspecified extent for purposes of determining that the required oath to uphold and defend the

 Constitution could be taken in good faith. 193 Changes in Court personnel following this decision would seem to leave the questions

 presented open to further litigation.

Right of Association 

“It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’

 assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . Of course, it

          1057          is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural

 matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” 194 It would

 appear from the Court’s opinions that the right of association is derivative from the First Amendment guarantees of speech, assembly, and 

petition, 195 although it has at times seemingly been referred to as a separate, independent freedom protected by the First Amendment. 196

 The doctrine is a fairly recent construction, the problems associated with it having previously arisen primarily in the context of loyalty–security

 investigations of Communist Party membership, and these cases having been resolved without giving rise to any separate theory of 

association. 197 

Freedom of association as a concept thus grew out of a series of cases in the 1950’s and 1960’s in which certain States were attempting to

 curb the activities of the National Association for the Advancement of Colored People. In the first case, the Court unanimously set aside a

 contempt citation imposed after the organization refused to comply with a court order to produce a list of its members within the State.

 “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as

 this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly.” 198 

“[T]hese indispensable liberties, whether of speech, press, or association,” 199 may be abridged by governmental action either directly or 

indirectly, wrote Justice Harlan, and the State had failed to demonstrate a need for the lists which would outweigh the harm to associational

 rights which disclosure would produce.

Applying the concept in subsequent cases, the Court again held in Bates v. City of Little Rock, 200 that the disclosure of membership lists,

 because of the harm to be caused to “the right of association,” could only be compelled upon a showing of a subordinating interest; ruled 

in Shelton v. Tucker, 201 that while a State had a broad interest

          1058          to inquire into the fitness of its school teachers, that interest did not justify a regulation requiring all teachers to list all

 organizations to which they had belonged within the previous five years; again struck down an effort to compel membership lists from the

 NAACP; 202 and overturned a state court order barring the NAACP from doing any business within the State because of alleged

 improprieties. 203 Certain of the activities condemned in the latter case, the Court said, were protected by the First Amendment and, while

 other actions might not have been, the State could not so infringe on the “right of association” by ousting the organization altogether. 204 

A state order prohibiting the NAACP from urging persons to seek legal redress for alleged wrongs and from assisting and representing such

 persons in litigation opened up new avenues when the Court struck the order down as violating the First Amendment. 205 

“[A]bstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous

 advocacy, certainly of lawful ends, against governmental intrusion. . . . In the context of NAACP objectives, litigation is not a technique of

 resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and

 local, for the members of the Negro community in this country. It is thus a form of political expression. . . .

“We need not, in order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, whereby

 Negroes seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of

 speech, petition or assembly. For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly

 group activity.” 206

          1059          This decision was followed in three subsequent cases in which the Court held that labor unions enjoyed First Amendment

 protection in assisting their members in pursuing their legal remedies to recover for injuries and other actions. In the first case, the union

 advised members to seek legal advice before settling injury claims and recommended particular attorneys; 207 in the second the union

 retained attorneys on a salary basis to represent members; 208 in the third, the union maintained a legal counsel department which

 recommended certain attorneys who would charge a limited portion of the recovery and which defrayed the cost of getting clients together with

 attorneys and of investigation of accidents. 209 Wrote Justice Black: “[T]he First Amendment guarantees of free speech, petition, and

 assembly give railroad workers the rights to cooperate in helping and advising one another in asserting their rights. . . .” 210 

 Thus, a right to associate together to further political and social views is protected against unreasonable burdening, 211 but the evolution of

 this right in recent years has passed far beyond the relatively narrow contexts in which it was given birth.

 Social contacts that fall short of organization or association to “engage in speech” may be unprotected, however. In holding that a state may

 restrict admission to certain licensed dance halls to persons between the age of 14 and 18, the Court declared that there is no “generalized

 right of ‘social association’ that includes chance encounters in dance halls.” 212 

 In a series of three decisions, the Court explored the extent to which associational rights may be burdened by nondiscrimination

          1060          requirements. First, Roberts v. United States Jaycees 213 upheld application of the Minnesota Human Rights Act to

 prohibit the United States Jaycees from excluding women from full membership. Three years later in Board of Directors of 

 Rotary Int’l v. Rotary Club of Duarte, 214 the Court applied Roberts in upholding application of a similar California law to prevent Rotary

 International from excluding women from membership. Then, in New York State Club Ass’n v. New York City, 215 the Court upheld against

 facial challenge New York City’s Human Rights Law, which prohibits race, creed, sex, and other discrimination in places “of public

 accommodation, resort, or amusement,” and applies to clubs of more than 400 members providing regular meal service and supported by

 nonmembers for trade or business purposes. In Roberts, both the Jaycees’ nearly indiscriminate membership requirements and the State’s

 compelling interest in prohibiting discrimination against women were important to the Court’s analysis. On the one hand, the Court found, 

 “the local chapters of the Jaycees are large and basically unselective groups,” age and sex being the only established membership criteria in

 organizations otherwise entirely open to public participation. The Jaycees, therefore, “lack the distinctive characteristics [e.g. small size,

 identifiable purpose, selectivity in membership, perhaps seclusion from the public eye] that might afford constitutional protection to the

 decision of its members to exclude women.” 216 Similarly, the Court determined in Rotary International that Rotary Clubs, designed as

 community service organizations representing a cross section of business and professional occupations, also do not represent “the kind of

 intimate or private relation that warrants constitutional protection. ”217 And in the New York City case, the fact that the ordinance “certainly

 could be constitutionally applied at least to some of the large clubs, under [the] decisions in Rotary and Roberts, the applicability criteria

 “pinpointing organizations which are ‘commercial’ in nature,” helped to defeat the facial challenge. 218 

 Some amount of First Amendment protection is still due such organizations; the Jaycees and its members had taken public positions on a

 number of issues, and had engaged in “a variety of civic, charitable, lobbying, fundraising and other activities worthy of constitutional

 protection.”

          1061          However, the  Roberts Court could find "no basis in the record for concluding that admission of women as full voting

 members will impede the organization’s ability to engage in these protected activities or to disseminate its preferred views.” 219 Moreover, 

 the State had a “compelling interest to prevent . . . acts of invidious discrimination in the distribution of publicly available goods, services, and

 other advantages.” 220 

 Because of the near–public nature of the Jaycees and Rotary Clubs—the Court in Roberts likening the situation to a large business attempting

 to discriminate in hiring or in selection of customers—the cases may be limited in application, and should not be read as governing

 membership discrimination by private social clubs. 221 In New York City, the Court noted that “opportunities for individual associations to

 contest the constitutionality of the Law as it may be applied against them are adequate to assure that any overbreadth . . . will be curable

 through case–by–case analysis of specific facts.” 222 

Political Association.—The major expansion of the right of association has occurred in the area of political rights. “There can no longer be any

 doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of ‘orderly group activity’

 protected by the First and Fourteenth Amendments. . . . The right to associate with the political party of one’s choice is an integral part of this

 basic constitutional freedom.” 223 Usually in combination with an equal protection analysis, the Court since Williams v. Rhodes 224 has

 passed on numerous state restrictions that have an impact upon the ability of individuals or groups to join one or the other of the major parties

 or to form and join an independent political party to further political, social and economic goals. 225 Of course, the right is not absolute. The

 Court has recognized that there must be substantial state regulation of the election process which necessarily will work a

          1062          diminution of the individual’s right to vote and to join with others for political purposes. The validity of governmental regulation

 must be determined by assessing the degree of infringement of the right of association against the legitimacy, strength, and necessity of the

 governmental interests and the means of implementing those interests. 226 Many restrictions upon political association have survived this

 sometimes exacting standard of review, in large measure upon the basis of some of the governmental interests found compelling. 227 

A significant extension of First Amendment association rights in the political context occurred when the Court curtailed the already limited

 political patronage system. At first holding that a nonpolicy– making, nonconfidential government employee cannot be discharged from a job

 that he is satisfactorily performing upon the sole ground of his political beliefs or affiliations, 228 the Court subsequently held that “the question

 is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public

 office involved.” 229

          1063          The concept of policymaking, confidential positions was abandoned, the Court noting that some such positions would

 nonetheless be protected whereas some people filling positions not reached by the description would not be. 230 The opinion of the Court

 makes difficult an evaluation of the ramifications of the decision, but it seems clear that a majority of the Justices adhere to a doctrine of broad

 associational political freedom that will have substantial implications for governmental employment. Refusing to confine Elrod and Branti to

 their facts, the court in Rutan v. Republican Party of Illinois, 231 held that restrictions on patronage apply not only to dismissal or its

 substantial equivalent, but also to promotion, transfer, recall after layoffs, and hiring of low–level public employees.

The protected right of association extends as well to coverage of party principles, enabling a political party to assert against some state

 regulation an overriding interest sufficient to overcome the legitimate interests of the governing body. Thus, a Wisconsin law that mandated an

 open primary election, with party delegates bound to support at the national convention the wishes of the voters expressed in that primary

 election, while legitimate and valid in and of itself, had to yield to a national party rule providing for the acceptance of delegates chosen only in

 an election limited to those voters who affiliated with the party.232 

Provisions of the Federal Election Campaign Act requiring the reporting and disclosure of contributions and expenditures to and by political

 organizations, including the maintenance by such organizations of records of everyone contributing more than $10 and the reporting by

 individuals and groups that are not candidates or political committees who contribute or expend more than $100 a year for the purpose of

 advocating the election or defeat of an identified candidate, were sustained. 233 “[C]ompelled disclosure, in itself, can seriously infringe on

 privacy of association and belief guaranteed by the First Amendment. . . . We long have recognized

          1064          the significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by

 a mere showing of some legitimate governmental interest. . . . We have required that the subordinating interests of the State must survive

 exacting scrutiny. We have also insisted that there be a ‘relevant correlation’ or ‘substantial relation’ between the governmental interest and

 the information required to be disclosed.” 234 The governmental interests effectuated by these requirements—providing the electorate with

 information, deterring corruption and the appearance of corruption, and gathering data necessary to detect violations—were found to be of

 sufficient magnitude to be validated even though they might incidentally deter some persons from contributing. 235 A claim that contributions

 to minor parties and independents should have a blanket exemption from disclosure was rejected inasmuch as an injury was highly

 speculative; but any such party making a showing of a reasonable probability that compelled disclosure of contributors’ names would subject

 them to threats or reprisals could obtain an exemption from the courts. 236 The Buckley Court also narrowly construed the requirement of

 reporting independent contributions and expenditures in order to avoid constitutional problems. 237 

 Conflict Between Organization and Members.—It is to be expected that disputes will arise between an organization and some of its members,

 and that First Amendment principles may be implicated. Of course, unless there is some governmental connection, there will be no federal

 constitutional application to any such controversy. 238 But at least in some instances, when government compels membership in an

 organization or in some manner lends its authority to such compulsion, there may well be constitutional limitations. Disputes implicating such

 limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway

 Labor Act. 239 

          1065           Initially, the Court avoided constitutional issues in resolving a challenge by union shop employees to use of their dues money

 for political causes. Acknowledging “the utmost gravity” of the constitutional issues, the Court determined that Congress had intended that 

 dues money obtained through union shop agreements should be used only to support collective bargaining and not in support of other

 causes. 240 Justices Black and Douglas, in separate opinions, would have held that Congress could not constitutionally provide for

 compulsory membership in an organization which could exact from members money which the organization would then spend on causes

 which the members opposed; Justices Frankfurter and Harlan, also reaching the constitutional issue, would have held that the 

 First Amendment was not violated when government did not compel membership but merely permitted private parties to enter into such

 agreements and that in any event so long as members were free to espouse their own political views the use by a union of dues money to

 support political causes which some members opposed did not violate the First Amendment.  241 

 In Abood v. Detroit Board of Education, 242 the Court applied Hanson and Street to the public employment context. Recognizing that

 employee associational rights were clearly restricted by any system of compelled support, because the employees had a right not to

 associate, not to support, the Court nonetheless found the governmental interests served by the agency shop provision—the promotion of

 labor peace and stability of employer–employee relations—to be of overriding importance and to justify the impact upon employee

 freedom. 243

          1066          But a different balance was drawn when the Court considered whether employees compelled to support the union were

 constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not

 germane to the union’s duties as collective–bargaining representative. To compel one to expend funds in such a way is to violate his freedom

 of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs. 244 However,

 the remedy was not to restrain the union from making non–collective bargaining related expenditures but to require that those funds come only

 from employees who do not object. Therefore, the lower courts were directed to oversee development of a system whereby employees could

  object generally to such use of union funds and could obtain either a proportionate refund or reduction of future exactions. 245 Later, the

 Court further tightened the requirements. A proportionate refund is inadequate because “even then the union obtains an involuntary loan for

 purposes to which the employee objects;” 246 an advance reduction of dues corrects the problem only if accompanied by sufficient

 information by which employees may gauge the propriety of the union’s fee. 247 Therefore, the union procedure must also “provide for a

 reasonably prompt decision by an impartial decisionmaker.” 248 

 On a related matter, the Court held that a labor relations body could not prevent a union member or employee represented exclusively by a

 union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining

 between the union and the employer. 249 

Footnotes:

1 1 Annals of Congress 434 (1789). Madison had also proposed language limiting the power of the States in a number of respects, including a guarantee of freedom of the press, Id. at 435. Although passed by the House, the amendment was defeated by the Senate, supra, p.957.  

2 Id. at 731 (August 15, 1789).  

3 The Bill of Rights: A Documentary History 1148–49 (B. Schwartz ed. 1971).  

4 Id. at 1153.  

5 The House debate insofar as it touched upon this amendment was concerned almost exclusively with a motion to strike the right to assemble and an amendment to add a right of the people to instruct their Representatives. 1 Annals of Congress 731–49 (August 15, 1789). There are no records of debates in the States on ratification.  

6 Id. at 738.  

7 4 W. Blackstone’s Commentaries on the Laws of England 151–52 (T. Cooley 2d rev. ed. 1872). See 3 J. Story, Commentaries on the Constitution of the United States 1874–86 (Boston: 1833). The most comprehensive effort to assess theory and practice in the period prior to and immediately following adoption of the Amendment is L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (1960), which generally concluded that the Blackstonian view was the prevailing one at the time and probably the understanding of those who drafted, voted for, and ratified the Amendment.  

8 It would appear that Madison advanced libertarian views earlier than his Jeffersonian compatriots, as witness his leadership of a move to refuse officially to concur in Washington’s condemnation of “[c]ertain self–created societies,” by which the President meant political clubs supporting the French Revolution, and his success in deflecting the Federalist intention to censure such societies. I. Brant, James Madison—Father of the Constitution 1787–1800, 416–20 (1950). “If we advert to the nature of republican government,” Madison told the House, “we shall find that the censorial power is in the people over the government, and not in the government over the people.” 4 Annals of Congress 934 (1794). On the other hand, the early Madison, while a member of his county’s committee on public safety, had enthusiastically promoted prosecution of Loyalist speakers and the burning of their pamphlets during the Revolutionary period. 1 Papers of James Madison 147, 161–62, 190–92 (W. Hutchinson & W. Rachal eds. 1962). There seems little doubt that Jefferson held to the Blackstonian view. Writing to Madison in 1788, he said: “A declaration that the federal government will never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed.” 13 Papers of Thomas Jefferson 442 (J. Boyd ed. 1955). Commenting a year later to Madison on his proposed amendment, Jefferson suggested that the free speech–free press clause might read something like: “The people shall not be deprived or abridged of their right to speak, to write or otherwise to publish anything but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.” 15 Papers, supra, at 367.  

9 The Act, Ch. 74, 1 Stat. 596 (1798), punished anyone who would “write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute.” See J. Smith, Freedom’s Fetters—The Alien and Sedition Laws and American Civil Liberties (1956).  

10 Id. at 159 et seq.  

11 L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History, ch. 6 (Cambridge, 1960); New York Times Co. v. Sullivan, 376 U.S. 254, 273–76 (1964) . But compare L. Levy, Emergence of a Free Press (1985), a revised and enlarged edition of Legacy of Suppression, in which Professor Levy modifies his earlier views, arguing that while the intention of the Framers to outlaw the crime of seditious libel, in pursuit of a free speech principle, cannot be established and may not have been the goal, there was a tradition of robust and rowdy expression during the period of the framing that contradicts his prior view that a modern theory of free expression did not begin to emerge until the debate over the Alien and Sedition Acts.  

12 L. Levy, Jefferson and Civil Liberties—The Darker Side (Cambridge, 1963). Thus President Jefferson wrote to Governor McKean of Pennsylvania in 1803: “The federalists having failed in destroying freedom of the press by their gag–law, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. . . . This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.” 9 Works of Thomas Jefferson 449 (P. Ford, ed. 1905).  

13 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) , provides the principal doctrinal justification for the development, although the results had long since been fully applied by the Court. In Sullivan, Justice Brennan discerned in the controversies over the Sedition Act a crystallization of “a national awareness of the central meaning of the First Amendment,” id. at 273, which is that the “right of free public discussion of the stewardship of public officials . . . [is] a fundamental principle of the American form of government.” Id. at 275. This “central meaning” proscribes either civil or criminal punishment for any but the most maliciously, knowingly false criticism of government. “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. . . . [The historical record] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.” Id. at 276. Madison’s Virginia Resolutions of 1798 and his Report in support of them brought together and expressed the theories being developed by the Jeffersonians and represent a solid doctrinal foundation for the point of view that the First Amendment superseded the common law on speech and press, that a free, popular government cannot be libeled, and that the First Amendment absolutely protects speech and press. 6 Writings of James Madison, 341–406 (G. Hunt. ed. 1908).  

14 Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis original). Justice Frankfurter had similar views in 1951: “The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. . . . ‘The law is perfectly well settled,’ this Court said over fifty years ago, ‘that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well–recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.’ That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years.” Dennis v. United States, 341 U.S. 494, 521–522, 524 (1951) (concurring opinion). The internal quotation is from Robertson v. Baldwin, 165 U.S. 275, 281 (1897) .  

15 Patterson v. Colorado, 205 U.S. 454, 461 (1907) .  

16 249 U.S. 47, 51–52 (1919) (citations omitted).  

17 Debs v. United States, 249 U.S. 211 (1919) ; Abrams v. United States, 250 U.S. 616 (1919) ; Schaefer v. United States, 251 U.S. 466 (1920) ; Pierce v. United States, 252 U.S. 239 (1920) ; United States ex rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921) . A state statute similar to the federal one was upheld in Gilbert v. Minnesota, 254 U.S. 325 (1920) .  

18 Gitlow v. New York, 268 U.S. 652 (1925) ; Whitney v. California, 274 U.S. 357 (1927) . The Brandeis and Holmes dissents in both cases were important formulations of speech and press principles.  

19 274 U.S. 380 (1927) .  

20 283 U.S. 359 (1931) . By contrast, it was not until 1965 that a federal statute was held unconstitutional under the First Amendment. Lamont v. Postmaster General, 381 U.S. 301 (1965) . See also United States v. Robel, 389 U.S. 258 (1967) .  

21 And see Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) ; Herndon v. Lowry, 301 U.S. 242 (1937) ; De Jonge v. Oregon, 299 U.S. 353 (1937) ; Lovell v. Griffin, 303 U.S. 444 (1938) .  

22 Bridges v. California, 314 U.S. 252, 263–68 (1941) (overturning contempt convictions of newspaper editor and others for publishing commentary on pending cases).  

23 New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) .  

24 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) .  

25 While “expression” is not found in the text of the First Amendment, it is used herein, first, as a shorthand term for the freedoms of speech, press, assembly, petition, association, and the like, which are comprehended by the Amendment, and, second, as a recognition of the fact that judicial interpretation of the clauses of the First Amendment has greatly enlarged the definition commonly associated with “speech,” as the following discussion will reveal. The term seems well settled, see, e.g., T. Emerson, The System of Freedom of Expression (1970), although it has been criticized. F. Schauer, Free Speech: A Philosophical Inquiry, 50–52 (1982). The term also, as used here, conflates the speech and press clauses, explicitly assuming they are governed by the same standards of interpretation and that, in fact, the press clause itself adds nothing significant to the speech clause as interpreted, an assumption briefly defended infra, pp.1026–29.  

26 T. Emerson, The System of Freedom of Expression 15 (1970). The practice in the Court is largely to itemize all the possible values the First Amendment has been said to protect. See, e.g., Consolidated Edison Co. v. PSC, 447 U.S. 530, 534–35 (1980) ; First National Bank of Boston v. Bellotti, 435 U.S. 765, 776–77 (1978) .  

27 T. Emerson, The System of Freedom of Expression 6–7 (1970). For Emerson, the four values are (1) assuring individuals self– fulfillment, (2) promoting discovery of truth, (3) providing for participation in decisionmaking by all members of society, and (4) promoting social stability through discussion and compromise of differences. For a persuasive argument in favor of an “eclectic” approach, see Shriffrin, The First Amendment and Economic Regulation: Away From a General Theory of the First Amendment, 78 U.L. Rev. 1212 (1983). A compressive discussion of all the theories may be found in F. Schauer, Free Speech: A Philosophical Inquiry (1982).  

28 E.g., A. Meiklejohn, Political Freedom (1960); Bork, Neutral Principles and Some First Amendment Problems, 47 L.J. 1 (1971); BeVier, The First Amendment and Political Speech: An Inquiry Into the Substance and Limits of Principle, 30 L. Rev. 299 (1978). This contention does not reflect the Supreme Court’s view. “It is no doubt true that a central purpose of the First Amendment ‘was to protect the free discussion of governmental affairs.’ . . . But our cases have never suggested that expression about philosophical, social, artistic, economic, literary, or ethical matters—to take a nonexclusive list of labels—is not entitled to full First Amendment protection.” Abood v. Detroit Bd. of Educ., 431 U.S. 209, 231 (1977) .  

29 The “marketplace of ideas” metaphor is attributable to Justice Holmes’ opinion in Abrams v. United States, 250 U.S. 616, 630 (1919) . See Scanlon, Freedom of Expression and Categories of Expression, 40 Pitt. L. Rev. 519 (1979). The theory has been the dominant one in scholarly and judicial writings. Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. Rev. 964, 967–74 (1978).  

30 E.g., Baker “Process of Change and the Liberty Theory of the First Amendment, 55 Cal. L. Rev. 293 (1982); Baker, Realizing Self–Realization: Corporate Political Expenditures and Redish’s The Value of Free Speech, 130 Pa. L. Rev. 646 (1982).  

31 Redish, The Value of Free Speech, 130 Pa. L. Rev. 591 (1982).  

Supplement Footnotes

63 Through interpretation of the Fourteenth Amendment, the prohibition extends to the States as well. See discussion on incorporation, main text, pp. 957–64.  

64 See discussion on state action, main text, pp. 1786–1802.  

65 CBS v. Democratic Nat’l Comm., 412 U.S. 94, 115 (1973) (opinion of Chief Justice Burger).  

66 Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (quoting Ex parte Virginia, 100 U.S. 339, 346–47 (1880) ). The Court refused to be bound by the statement in Amtrak’s authorizing statute that the corporation is “not . . . an agency or establishment of the United States Government.” This assertion can be effective “only for purposes of matters that are within Congress’ control,” the Court explained. “[I]t is not for Congress to make the final determination of Amtrak’s status as a governmental entity for purposes of determining the constitutional rights of citizens affected by its actions.” 513U.S. at 392 513U.S. at 392.  

67 In CBS v. Democratic Nat’l Comm., 412 U.S. 94 (1973) , the Court held that a broadcast licensee could refuse to carry a paid editorial advertisement. Chief Justice Burger, joined only by Justices Stewart and Rehnquist in that portion of his opinion, reasoned that a licensee’s refusal to accept such an ad did not constitute “governmental action” for purposes of the First Amendment. “The First Amendment does not reach acts of private parties in every instance where the Congress or the [Federal Communications] Commission has merely permitted or failed to prohibit such acts.” Id. at 119. 

32 Houchins v. KQED, 438 U.S. 1, 17 (1978) (concurring opinion). Justice Stewart initiated the debate in a speech, subsequently reprinted as Stewart, Or of the Press, 26 Hastings L. J. 631 (1975). Other articles are cited in First National Bank of Boston v. Bellotti, 435 U.S. 765, 795 (1978) (Chief Justice Burger concurring).  

33 Id. at 798. The Chief Justice’s conclusion was that the institutional press had no special privilege as the press.  

34 Houchins v. KQED, 438 U.S. 1 (1978) , and id. at 16 (Justice Stewart concurring); Saxbe v. Washington Post, 417 U.S. 843 (1974) ; Pell v. Procunier, 417 U.S. 817 (1974) ; Nixon v. Warner Communications, 435 U.S. 589 (1978) . The trial access cases, whatever they may precisely turn out to mean, recognize a right of access of both public and press to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) ; Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) .  

35 Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury testimony be newspaper reporter); Zurcher v. Stanford Daily, 436 U.S. 547 (1978) (search of newspaper offices); Herbert v. Lando, 441 U.S. 153 (1979) (defamation by press); Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (newspaper’s breach of promise of confidentiality).  

36 Cohen v. Cowles Media, 501 U.S. 663, 669 (1991) .  

37 E.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974) ; Landmark Communications v. Virginia, 435 U.S. 829 (1978) . See also Zurcher v. Stanford Daily, 436 U.S. 547, 563–67 (1978) , and id. at 568 (Justice Powell concurring); Branzburg v. Hayes, 408 U.S. 665, 709 (1972) (Justice Powell concurring). Several concurring opinions in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) , imply recognition of some right of the press to gather information that apparently may not be wholly inhibited by nondiscriminatory constraints. Id. at 582–84 (Justice Stevens), 586 n.2 (Justice Brennan), 599 n.2 (Justice Stewart). On the other hand, the Court has also suggested that the press is protected in order to promote and to protect the exercise of free speech in the society, including the receipt of information by the people. E.g., Mills v. Alabama, 384 U.S. 214, 218–19 (1966) ; CBS v. FCC, 453 U.S. 367, 394–95 (1981) .  

38 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) . See infra, pp.1136–45.  

39 Stewart, Or of the Press, 26 Hastings, L. J. 631, 633–35 (1975).  

40 In Hutchinson v. Proxmire, 443 U.S. 111, 133 n.16 (1979) , the Court noted that it has never decided whether the Times standard applies to an individual defendant. Some think they discern in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) , intimations of such leanings by the Court.  

41 First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) . The decision, addressing a question not theretofore confronted, was 5–to–4. Justice Rehnquist would have recognized no protected First Amendment rights of corporations because, as entities entirely the creation of state law, they were not to be accorded rights enjoyed by natural persons. Id. at 822. Justices White, Brennan, and Marshall thought the First Amendment implicated but not dispositive because of the state interests asserted. Id. at 802. Previous decisions recognizing corporate free speech had involved either press corporations, id. at 781–83; and see id. at 795 (Chief Justice Burger concurring), or corporations organized especially to promote the ideological and associational interests of their members. E.g., NAACP v. Button, 371 U.S. 415 (1963) .  

42 Commercial speech when engaged in by a corporation is subject to the same standards of protection as when natural persons engage in it. Consolidated Edison Co. v. PSC, 447 U.S. 530, 533–35 (1980) . Nor does the status of a corporation as a government–regulated monopoly alter the treatment. Id. at 534 n.1; Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 566–68 (1980) .  

43 Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931) .  

44 Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963) .  

45 Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) ; New York Times Co. v. United States, 403 U.S. 713, 714 (1971) .  

46 Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713–14 (1931) : Lovell v. Griffin, 303 U.S. 444, 451 (1938) .  

47 283 U.S. 697 (1931) .  

48 Id. at 723, 733–36 (Justice Butler dissenting).  

49 Id. at 712–13.  

50 Id. at 719–20.  

51 Id. at 715–16.  

52 E.g., Lovell v. Griffin, 303 U.S. 444 (1938) ; Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Kunz v. New York, 340 U.S. 290 (1951) ; Niemotko v. Maryland, 340 U.S. 268 (1951) ; Staub v. City of Baxley, 355 U.S. 313 (1958) . For other applications, see Grosjean v. American Press Co., 297 U.S. 233 (1936) ; Murdock v. Pennsylvania, 319 U.S. 105 (1943) ; Follett v. McCormick, 321 U.S. 573 (1944) .  

53 Cox v. New Hampshire, 312 U.S. 569 (1941) ; Poulos v. New Hampshire, 345 U.S. 395 (1953) . In Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175 (1968) , the Court held invalid the issuance of an ex parte injunction to restrain the holding of a protest meeting, holding that usually notice must be given the parties to be restrained and an opportunity for them to rebut the contentions presented to justify the sought–for restraint. In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) , the Court held invalid as a prior restraint an injunction preventing the petitioners from distributing 18,000 pamphlets attacking respondent’s alleged “blockbusting” real estate activities; he was held not to have borne the “heavy burden” of justifying the restraint. “No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy . . . is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record.” Id. at 419–20. See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (ordinance vesting in the mayor unbridled discretion to grant or deny annual permit for location of newsracks on public property is facially invalid as prior restraint).  

 The necessity of immediate appellate review of orders restraining the exercise of First Amendment rights was strongly emphasized in National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977) , and seems to explain the Court’s action in Philadelphia Newspapers v. Jerome, 434 U.S. 241 (1978) . But see Moreland v. Sprecher, 443 U.S. 709 (1979) (party can relinquish right to expedited review through failure to properly request it).  

54 New York Times Co. v. United States, 403 U.S. 713 (1971) . The vote was six to three, with Justices Black, Douglas, Brennan, Stewart, White, and Marshall in the majority and Chief Justice Burger and Justices Harlan and Blackmun in the minority. Each Justice issued an opinion.  

55 The three dissenters thought such restraint appropriate in this case. Id. at 748, 752, 759. Justice Stewart thought restraint would be proper if disclosure “will surely result in direct, immediate, and irreparable damage to our Nation or its people,” id. at 730, while Justice White did not endorse any specific phrasing of a standard. Id. at 730–733. Justice Brennan would preclude even interim restraint except upon “governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea.” Id. at 712–13.  

 The same issues were raised in United States v. Progressive, Inc., 467 F. Supp. 990 (W.D.Wis. 1979), in which the United States obtained an injunction prohibiting publication of an article it claimed would reveal information about nuclear weapons, thus increasing the dangers of nuclear proliferation. The injunction was lifted when the same information was published elsewhere and thus no appellate review was had of the order.  

 With respect to the right of the Central Intelligence Agency to prepublication review of the writings of former agents and its enforcement through contractual relationships, see Snepp v. United States, 444 U.S. 507 (1980) ; Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975) ; United States v. Marchetti, 446 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972) . 

56 Nebraska Press Ass’n. v. Stuart, 427 U.S. 539 (1976) .  

57 Id. at 562, quoting Dennis v. United States, 183 F.2d 201, 212 (2d Cir. 1950), aff’d., 341 U.S. 494, 510 (1951) .  

58 Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976) (opinion of Chief Justice Burger, concurred in by Justices Blackmun and Rehnquist, and, also writing brief concurrences, Justices White and Powell). Applying the tests, the Chief Justice agreed that (a) there was intense and pervasive pretrial publicity and more could be expected, but that (b) the lower courts had made little effort to assess the prospects of other methods of preventing or mitigating the effects of such publicity and that (c) in any event the restraining order was unlikely to have the desired effect of protecting the defendant’s rights. Id. at 562–67.  

59 The Court differentiated between two kinds of information, however: (1) reporting on judicial proceedings held in public, which has “special” protection and requires a much higher justification than (2) reporting of information gained from other sources as to which the burden of justifying restraint is still high. Id. at 567–68, 570. See also Oklahoma Pub. Co. v. District Court, 430 U.S. 308 (1977) (setting aside injunction restraining news media from publishing name of juvenile involved in pending proceeding when name has been learned at open detention hearing that could have been closed but was not); Smith v. Daily Mail Pub. Co., 433 U.S. 97 (1979) .  

60 Id. at 572, 588. Justices Stewart and Marshall joined this opinion and Justice Stevens noted his general agreement except that he reserved decision in particularly egregious situations, even though stating that he might well agree with Justice Brennan there also. Id. at 617. Justice White, while joining the opinion of the Court, noted that he had grave doubts that “gag orders” could ever be justified but he would refrain from so declaring in the Court’s first case on the issue. Id. at 570.  

61 Id. at 588–95.  

62 One such alternative is the banning of communication with the press on trial issues by prosecution and defense attorneys, police officials, and court officers. This, of course, also raises First Amendment issues. See, e.g., Chicago Council of Lawyers v. Bauer, 522 F. 2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976) .  

63 467 U.S. 20 (1984) .  

64 467U.S. at 36 467U.S. at 36. The decision was unanimous, all other Justices joining Justice Powell’s opinion for the Court, but with Justices Brennan and Marshall noting additionally that under the facts of the case important interests in privacy and religious freedom were being protected. Id. at 37, 38.  

65 Infra, pp.1149–59.  

66 354 U.S. 436 (1957) . See also Bantam Books v. Sullivan, 372 U.S. 58 (1963) .  

67 365 U.S. 43 (1961) . See also Young v. American Mini Theatres, 427 U.S. 50 (1976) (zoning ordinance prescribing distances adult theaters may be located from residential areas and other theaters is not an impermissible prior restraint).  

68 Cf. Kingsley Books v. Brown, 354 U.S. 436 (1957) .  

69 Freedman v. Maryland, 380 U.S. 51 (1965) ; Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968) ; Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968) ; Blount v. Rizzi, 400 U.S. 410 (1971) ; United States v. Thirty–seven Photographs, 402 U.S. 363, 367–375 (1971) ; Southeastern Promotions v. Conrad, 420 U.S. 546 (1975) ; Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) ; FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (ordinance requiring licensing of “sexually oriented business” places no time limit on approval by inspection agencies and fails to provide an avenue for prompt judicial review); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (seizure of books and films based on ex parte probable cause hearing under state RICO law’s forfeiture procedures constitutes invalid prior restraint; instead, there must be a determination in an adversarial proceeding that the materials are obscene or that a RICO violation has occurred).  

Supplement: [P. 1033, add to n.69:]

But cf. Alexander v. United States, 509 U.S. 544 (1993) (RICO forfeiture of the entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses, based on the predicate acts of selling four magazines and three videotapes, does not constitute a prior restraint and is not invalid as “chilling” protected expression that is not obscene).

70 2 T. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Powers of the States of the American Union 885–86 (8th ed. 1927).  

71 New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) . See also Speiser v. Randall, 357 U.S. 513, 526 (1958) ; Smith v. California, 361 U.S. 147, 153–154 (1959) ; Time, Inc. v. Hill, 385 U.S. 374, 389 (1967) .  

72 Abrams v. United States, 250 U.S. 616, 630 (1919) (Justice Holmes dissenting).  

73 Whitney v. California, 274 U.S. 357, 375–76 (1927) (Justice Brandeis concurring).  

74 Id. at 373.  

75 Id. at 374.  

76 On the great range of expressive communications, see infra.  

77 Davis v. Beason, 133 U.S. 333 (1890) ; Fox v. Washington, 236 U.S. 273 (1915) .  

78 249 U.S. 47 (1919) .  

79 Id. at 52.  

80 Frohwerk v. United States, 249S., 204, 206 (1919) (citations omitted).  

81 249 U.S. 211, 215–16 (1919) .  

82 250 U.S. 616 (1919) .  

83 Schaefer v. United States, 251 U.S. 466, 479 (1920) . See also Pierce v. United States, 252 U.S. 239 (1920) .  

84 268 U.S. 652 (1925)  

85 Id. at 670–71.  

86 Id. at 668. Justice Holmes dissented. “If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who share the defendant’s views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief, and, if believed, is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they would be given their chance and have their way.” Id. at 673.  

87 274 U.S. 357, 371–72 (1927) .  

88 Id. at 376. 

89 274 U.S. 380 (1927) .  

90 Stromberg v. California, 283 U.S. 359 (1931) .  

91 299 U.S. 353 (1937) . See id. at 364–65.  

92 301 U.S. 242, 258 (1937) . At another point, clear and present danger was alluded to without any definite indication it was the standard. Id. at 261.  

93 310 U.S. 88, 105 (1940) . The Court admitted that the picketing did result in economic injury to the employer, but found such injury “neither so serious nor so imminent” as to justify restriction. The role of clear and present danger was not to play a future role in the labor picketing cases.  

94 Cantwell v. Connecticut, 310 U.S. 296, 308 (1940) .  

95 337 U.S. 1 (1949) .  

96 Id. at 4–5.  

97 Id. at 25–26.  

98 340 U.S. 315, 321 (1951) .  

99 Thornhill v. Alabama, 310 U.S. 88 (1940) ; Dennis v. United States, 341 U.S. 494 (1951) .  

100 Patterson v. Colorado, 205 U.S. 454 (1907) ; Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918) .  

101 314 U.S. 252 (1941) .  

102 Id. at 263.  

103 Id. at 270–71.  

104 Id. at 271–78.  

105 Id. at 291. Joining Justice Frankfurter in dissent were Chief Justice Stone and Justices Roberts and Byrnes.  

106 Pennekampt v. Florida, 328 U.S. 331, 336, 350 (1946) . To Justice Frankfurter, the decisive consideration was whether the judge or jury is, or presently will be, pondering a decision that comment seeks to affect. Id. at 369.  

107 Craig v. Harney, 331 U.S. 367, 376 (1947) . Dissenting with Chief Justice Vinson, Justice Frankfurter said: “We cannot say that the Texas Court could not properly find that these newspapers asked of the judge, and instigated powerful sections of the community to ask of the judge, that which no one has any business to ask of a judge, except the parties and their counsel in open court, namely, that he should decide one way rather than another.” Id. at 390. Justice Jackson also dissented. Id. at 394. See also Landmark Communications v. Virginia, 435 U.S. 829, 844 (1978) ; Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562– 63 (1976).  

108 370 U.S. 375 (1962) .  

109 Id. at 383–85, 386–90. Dissenting, Justices Harlan and Clark thought that the charges made by the defendant could well have influenced the grand jurors in their deliberations and that the fact that laymen rather than judicial officers were subject to influence should call forth a less stringent test than when the latter were the object of comment. Id. at 395.  

110 In re Little, 404 U.S. 553, 555 (1972) . The language from Craig v. Harney, 331 U.S. 367, 376 (1947) , is quoted supra, text accompanying n.13.  

111 341 U.S. 494 (1951) .  

112 Ch. 439, 54 Stat. 670 (1940), 18 U.S.C. Sec. 2385 .  

113 Dennis v. United States, 341 U.S. 494, 508 (1951) .  

114 Id. at 509.  

115 Id. at 508, 509.  

116 Id. at 510. Justice Frankfurter, concurring, adopted a balancing test, id. at 517, discussed infra, pp. 1023–28. Justice Jackson appeared to proceed on a conspiracy approach rather than one depending on advocacy. Id. at 561. Justices Black and Douglas dissented, reasserting clear and present danger as the standard. Id. at 579, 581. Note the recurrence to the Learned Hand formulation in Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562 (1976) , although the Court appeared in fact to apply balancing.  

117 In Yates v. United States, 354 U.S. 298 (1957) , the Court substantially limited both the Smith Act and the Dennis case by interpreting the Act to require advocacy of unlawful action, to require the urging of doing something now or in the future, rather than merely advocacy of forcible overthrow as an abstract doctrine, and by finding the evidence lacking to prove the former. Of Dennis, Justice Harlan wrote: “The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to ‘action for the accomplishment’ of forcible overthrow, to violence as ‘a rule or principle of action,’ and employing ‘language of incitement,’ id. at 511–12, is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur.” Id. at 321

118 Cf. Brennan, The Supreme Court and the Meiklejohn Interpretation of the First Amendment, 79 L. Rev. 1, 8 (1965). See Garner v. Louisiana, 368 U.S. 157, 185–207 (1961) (Justice Harlan concurring).  

119 339 U.S. 382 (1950) . See also Osman v. Douds, 339 U.S. 846 (1950) . Balancing language was used by Justice Black in his opinion for the Court in Martin v. City of Struthers, 319 U.S. 141, 143 (1943) , but it seems not to have influenced the decision. Similarly, in Schneider v. Irvington, 308 U.S. 147, 161–62 (1939) , Justice Roberts used balancing language which he apparently did not apply.  

120 The law, Sec. 9(h) of the Taft–Hartley Act, 61 Stat. 146 (1947), was repealed, 73 Stat. 525 (1959), and replaced by a section making it a criminal offense for any person “who is or has been a member of the Communist Party” during the preceding five years to serve as an officer or employee of any union. Sec. 504, 73 Stat. 536 (1959); 29 U.S.C. Sec. 504 . It was held unconstitutional in United States v. Brown, 381 U.S. 437 (1965) .  

121 American Communications Ass’n v. Douds, 339 U.S. 382, 396 (1950) .  

122 Id. at 399.  

123 Id. at 400–06.  

124 Dennis v. United States, 341 U.S. 494, 517 (1951) (concurring opinion).  

125 Id. at 524–25.  

126 Id. at 542.  

127 Id. at 525.  

128 Id. at 550–51.  

129 Id. at 540.  

130 Id. at 551.  

131 366 U.S. 36 (1961) .  

132 Id. at 50–51.  

133 Id. at 51–52.  

134 Id. at 52–53. See also In re Anastaplo, 366 U.S. 82 (1961) . The status of these two cases is in doubt after Baird v. State Bar, 401 U.S. 1 (1971) , and In re Stolar, 401 U.S. 23 (1971) , in which neither the plurality nor the concurring Justice making up the majority used a balancing test.  

135 Barenblatt v. United States, 360 U.S. 109 (1959) ; Uphaus v. Wyman, 360 U.S. 72 (1959) ; Wilkinson v. United States, 365 U.S. 399 (1961) ; Braden v. United States, 365 U.S. 431 (1961) .  

136 Communist Party v. SACB, 367 U.S. 1 (1961) ; Scales v. United States, 367 U.S. 203 (1961) .  

137 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) ; NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964) ; Gibson v. Florida Legislative Investigating Committee, 372 U.S. 539 (1963) .  

138 Pickering v. Board of Education, 391 U.S. 563 (1968) .  

139 Lamont v. Postmaster General, 381 U.S. 301 (1965) .  

140 E.g., Cox v. Louisiana, 379 U.S. 536 and 559 (1965) (2 cases); Edwards v. South Carolina, 372 U.S. 229 (1963) ; Adderley v. Florida, 385 U.S. 39 (1966) ; Brown v. Louisiana, 383 U.S. 131 (1966) . But see Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) , where balancing reappears and in which other considerations overbalance the First Amendment claims.  

141 389 U.S. 258 (1967) .  

142 Subversive Activities Control Act of 1950, Sec. 5(a)(1)(D), ch. 1024, 64 Stat. 992 , 50 U.S.C. Sec. 784 (a)(1)(D).  

143 United States v. Robel, 389 U.S. 258, 265 (1967) .  

144 Id. at 265–68.  

145 Id. at 268 n.20.  

146 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) .  

147 319 U.S. 105, 115 (1943) . See also West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943) .  

148 Thomas v. Collins, 323 U.S. 516, 529–30 (1945) .  

149 336 U.S. 77, 89 (1949) (collecting cases with critical analysis).  

150 Konigsberg v. State Bar of California, 366 U.S. 36, 56 (1961) (dissenting opinion). See also Braden v. United States, 365 U.S. 431, 441 (1961) (dissenting); Wilkinson v. United States, 365 U.S. 399, 422 (1961) (dissenting); Uphaus v. Wyman, 364 U.S. 388, 392 (1960) (dissenting); Barenblatt v. United States, 360 U.S. 109, 140 (1959) (dissenting); American Communications Ass’n v. Douds, 339 U.S. 382, 445 (1950) ; Communist Party v. SACB, 367 U.S. 1, 137 (1961) (dissenting); Beauharnais v. Illinois, 343 U.S. 250, 267 (1952) (dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (concurring); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (concurring). For Justice Douglas’ position, see New York Times Co. v. United States, supra, 403U.S. at 720 403U.S. at 720 (concurring); Roth v. United States, 354 U.S. 476, 508 (1957) (dissenting); Brandenburg v. Ohio, 395 U.S. 444, 450 (1969) (concurring).  

151 Konigsberg v. State Bar of California, 366 U.S. 36, 60–61 (1961) .  

152 Bates v. City of Little Rock, 361 U.S. 516, 528 (1960) (concurring).  

153 Cox v. Louisiana, 379 U.S. 559, 578, 581 (1965) (dissenting).  

154 These cases involving important First Amendment issues are dealt with infra, pp. 1123–42. See Brown v. Louisiana, 383 U.S. 131 (1966) ; Adderley v. Florida, 385 U.S. 39 (1966) . 

155 Infra, pp.1136–45, 1149–59.  

156 The vagueness doctrine generally requires that a statute be precise enough to give fair warning to actors that contemplated conduct is criminal, and to provide adequate standards to enforcement agencies, factfinders, and reviewing courts. See, e.g., Connally v. General Construction Co., 269 U.S. 385 (1926) ; Lanzetta v. New Jersey, 306 U.S. 451 (1939) ; Colautti v. Franklin, 439 U.S. 379 (1979) ; Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) .  

157 E.g., Cramp v. Board of Pub. Instruction, 368 U.S. 278 (1961) ; Baggett v. Bullitt, 377 U.S. 360 (1964) ; Keyishian v. Board of Regents, 385 U.S. 589 (1967) . See also Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (attorney discipline, extrajudicial statements).  

158 E.g., Winters v. New York, 333 U.S. 507 (1948) ; Burstyn v. Wilson, 343 U.S. 495 (1952) ; Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968) .  

159 E.g., Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Gregory v. City of Chicago, 394 U.S. 111 (1969) ; Coates v. City of Cincinnati, 402 U.S. 611 (1971) . See also Smith v. Goguen, 415 U.S. 566 (1974) (flag desecration law); Lewis v. City of New Orleans, 415 U.S. 130 (1974) (punishment of opprobrious words); Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) (door–to–door canvassing). For an evident narrowing of standing to assert vagueness, see Young v. American Mini Theatres, 427 U.S. 50, 60 (1976) .  

160 NAACP v. Button, 371 U.S. 415, 432–33 (1963) .  

161 E.g., Kunz v. New York, 340 U.S. 290 (1951) ; Aptheker v. Secretary of State, 378 U.S. 500 (1964) ; United States v. Robel, 389 U.S. 258 (1967) ; Zwickler v. Koota, 389 U.S. 241 (1967) ; Lewis v. City of New Orleans, 415 U.S. 130 (1974) . However, the Court’s dissatisfaction with the reach of the doctrine, see e.g., Younger v. Harris, 401 U.S. 37 (1971) , resulted in a curbing of it in Broadrick v. Oklahoma, 413 U.S. 601 (1973) , a 5–to–4 decision, in which the Court emphasized “that facial overbreadth adjudication is an exception to our traditional overbreadth adjudication,” and held that where conduct and not merely speech is concerned “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep,” Id. at 615. The opinion of the Court and Justice Brennan’s dissent, id. at 621, contain extensive discussion of the doctrine. Other restrictive decisions are Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974) ; Parker v. Levy, 417 U.S. 733, 757– 61 (1974); and New York v. Ferber, 458 U.S. 747, 766–74 (1982) . Nonetheless, the doctrine continues to be used across a wide spectrum of First Amendment cases. Bigelow v. Virginia, 421 U.S. 809, 815–18 (1975) ; Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) ; Doran v. Salem Inn, 422 U.S. 922, 932–34 (1975) ; Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633–39 (1980) ; Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) (charitable solicitation statute placing 25% cap on fundraising expenditures); City of Houston v. Hill, 482 U.S. 451 (1987) (city ordinance making it unlawful to “oppose, molest, abuse, or interrupt” police officer in performance of duty); Board of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987) (resolution banning all “First Amendment activities” at airport).  

162 Shelton v. Tucker, 364 U.S. 479 (1960) ; United States v. Robel, 389 U.S. 258 (1967) ; Schneider v. Smith, 390 U.S. 17 (1968) ; Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) ; Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 565, 569–71 (1980) .  

163 Bates v. City of Little Rock, 361 U.S. 516, 525 (1960) ; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 464 (1958) ; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961) . See also Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 565, 569 (1980) .  

164 Thus, obscenity, by definition, is outside the coverage of the First Amendment, Roth v. United States, 354 U.S. 476 (1957) ; Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973) , as are malicious defamation, New York Times Co. v. Sullivan, 376 U.S. 254 (1964) , and “fighting words,” Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) . The Court must, of course, decide in each instance whether the questioned expression definitionally falls within one of these or another category. See, e.g., Jenkins v. Georgia, 418 U.S. 153 (1974) ; Gooding v. Wilson, 405 U.S. 518 (1972) .  

165 E.g., the multifaceted test for determining when commercial speech is protected, Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 566 (1980) ; the standard for determining when expressive conduct is protected, United States v. O’Brien, 391 U.S. 367, 377 (1968) ; the elements going into decision with respect to access at trials, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–10 (1982) ; and the test for reviewing press “gag orders” in criminal trials, Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562–67 (1976) , are but a few examples.  

166 395 U.S. 444 (1969) .  

167 Yates v. United States, 354 U.S. 298 (1957) ; Scales v. United States 367 U.S. 203 (1961) : Noto v. United States, 367 U.S. 290 (1961) . And see Bond v. Floyd, 385 U.S. 116 (1966) ; Watts v. United States, 394 U.S. 705 (1969) .  

168 395U.S. at 447 395U.S. at 447 (1969). Subsequent cases relying on Brandenburg indicate the standard has considerable bite, but do not elaborate sufficiently enough to begin filling in the outlines of the test. Hess v. Indiana, 414 U.S. 105 (1973) ; NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982) . But see Haig v. Agee, 453 U.S. 280, 308– 09 (1981). 

169 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) ; Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940) ; United States v. Ballard, 322 U.S. 78 (1944) ; Torcaso v. Watkins, 367 U.S. 488 (1961) ; American Communications Ass’n v. Douds, 339 U.S. 382, 408 (1950) ; Bond v. Floyd, 385 U.S. 116, 132 (1966) ; Speiser v. Randall, 357 U.S. 513 (1958) ; Baird v. State Bar of Arizona, 401 U.S. 1, 5–6 (1971) , and id. at 9–10 (Justice Stewart concurring).  

170 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) .  

171 Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) .  

172 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) .  

173 310 U.S. 586 (1940) .  

174 Id. at 594. Justice Stone alone dissented, arguing that the First Amendment religion and speech clauses forbade coercion of “these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.” Id. at 601.  

175 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) . Justices Roberts and Reed simply noted their continued adherence to Gobitis. Id. at 642. Justice Frankfurter dissented at some length, denying that the First Amendment authorized the Court “to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.” Id. at 646, 647.  

176 Id. at 631, 633.  

177 Id. at 633–34. Barnette was the focus of the Court’s decision in Wooley v. Maynard, 430 U.S. 705 (1977) , voiding the state’s requirement that motorists display auto license plates bearing the motto “Live Free or Die.” Acting on the complaint of a Jehovah’s Witness, the Court held that one may not be compelled to display on his private property a message making an ideological statement. Compare PruneYard Shopping Center v. Robins, 447 U.S. 74, 85–88 (1980) , and id. at 96 (Justice Powell concurring).  

Supplement: [P. 1054, add to n.177:]

The First Amendment does not preclude the Government from “compel[ling] financial contributions that are used to fund advertising,” provided such contributions do not finance “political or ideological” views. Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471, 472 (1997) (upholding Secretary of Agriculture’s marketing orders that assessed fruit producers to cover the expenses of generic advertising of California fruit). Nor does the First Amendment preclude a public university from charging its students an activity fee that is used to support student organizations that engage in extracurricular speech, provided the money is allocated to those groups by use of viewpoint–neutral criteria. Board of Regents of the Univ. of Wisconsin System v. Southworth, 120S. Ct. 1346 (2000) (upholding fee except to the extent a student referendum substituted majority determinations for viewpoint neutrality in allocating funds).

178 Cole v. Richardson, 405 U.S. 676 (1972) ; Connell v. Higginbotham, 403 U.S. 207 (1971) ; Bond v. Floyd, 385 U.S. 116 (1966) ; Knight v. Board of Regents, 269 F. Supp. 339 (S.D.N.Y. 1967) (three– judge court), aff’d, 390 U.S. 36 (1968) ; Hosack v. Smiley, 276 F. Supp. 876 (C.D. Colo. 1967) (three–judge court), aff’d, 390 U.S. 744 (1968) ; Ohlson v. Phillips, 304 F. Supp. 1152 (C.D. Colo. 1969) (three–judge court), aff’d., 397 U.S. 317 (1970) ; Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 161 (1971) ; Fields v. Askew, 279 So. 2d 822 (Fla. 1973), aff’d per curiam, 414 U.S. 1148 (1974) .  

179 Compare Bond v. Floyd, 385 U.S. 116 (1966) , with Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971) .  

180 Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) .  

181 The issue has also arisen in the context of criminal sentencing. Evidence that racial hatred was a motivation for a crime may be taken into account, Barclay v. Florida, 463 U.S. 939, 949 (1983) , but evidence of the defendant’s membership in a racist group is inadmissible where race was not a factor and no connection had been established between the defendant’s crime and the group’s objectives. Dawson v. Delaware, 112 Ct. 4197 (1992). See also United States v. Abel, 469 U.S. 45 (1984) (defense witness could be impeached by evidence that both witness and defendant belonged to group whose members were sworn to lie on each other’s behalf).  

Supplement: [P. 1054, add to n.181 following citation to Barclay v. Florida:]

Wisconsin v. Mitchell, 508 U.S. 476 (1993) (criminal sentence may be enhanced because the defendant intentionally selected his victim on account of the victim’s race),

182 Bailey v. Richardson, 182 F. 2d 46, 59 (D.C. Cir. 1950). The premise of the decision was that government employment is a privilege rather than a right and that access thereto may be conditioned as the Government pleases. But this basis, as the Court has said, “has been thoroughly undermined in the ensuing years.” Board of Regents v. Roth, 408 U.S. 564, 571 n.9 (1972) . For the vitiation of the right– privilege distinction, see infra, p.1085.  

183 Bailey v. Richardson, 341 U.S. 918 (1951) . See also Washington v. McGrath, 341 U.S. 923 (1951) , aff’g by an equally divided Court, 182 F. 2d 375 (D.C. Cir. 1950). While no opinions were written in these cases, several Justices expressed themselves on the issues in Joint Anti–Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951) , decided the same day.  

184 339 U.S. 382 (1950) . In a later case raising the same point, the Court was again equally divided. Osman v. Douds, 339 U.S. 846 (1950) .  

185 339U.S. at 408–09, 412 339U.S. at 408–09, 412.  

186 Id. at 415.  

187 Id. at 422.  

188 Id. at 445.  

189 336 U.S. 36, 51–52 (1961) . See also In re Anastaplo, 336 U.S. 82, 89 (1961) . Justice Black, joined by Justice Douglas and Chief Justice Warren, dissented on the ground that the refusal to admit the two to the state bars was impermissibly based upon their beliefs. Id. at 56, 97.  

190 Baird v. State Bar of Arizona, 401 U.S. 1 (1971) ; In re Stolar, 401 U.S. 23 (1971) ; Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971) .  

191 401U.S. at 5–8 401U.S. at 5–8; id. at 28–29 (plurality opinions of Justices Black, Douglas, Brennan, and Marshall in Baird and Stolar, respectively); id. at 174–76, 178–80 (Justices Black and Douglas dissenting in Wadmond), 186–90 (Justices Marshall and Brennan dissenting in Wadmond).  

192 401U.S. at 17–19, 21–22 401U.S. at 17–19, 21–22 (Justices Blackmun, Harlan, and White, and Chief Justice Burger dissenting in Baird).  

193 401U.S. at 9–10 401U.S. at 9–10; id. at 31 (Justice Stewart concurring in Baird and Stolar, respectively). How far Justice Stewart would permit government to go is not made clear by his majority opinion in Wadmond. Id. at 161–66. 

194 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460–61 (1958) .  

195 Id.; Bates v. City of Little Rock, 361 U.S. 516, 522–23 (1960) ; United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 578–79 (1971) ; Healy v. James, 408 U.S. 169, 181 (1972) .  

196 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 463 (1958) ; NAACP v. Button, 371 U.S. 415, 429–30 (1963) ; Cousins v. Wigoda, 419 U.S. 477, 487 (1975) ; In re Primus, 436 U.S. 412, 426 (1978) ; Democratic Party v. Wisconsin, 450 U.S. 107, 121 (1981) .  

197 Infra, pp.1067–78.  

198 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) .  

199 Id. at 461.  

200 361 U.S. 516 (1960) .  

201 364 U.S. 479 (1960) .  

202 Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961) .  

203 NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964) .  

204 Id. at 308, 309.  

205 NAACP v. Button, 371 U.S. 415 (1963) .  

206 Id. at 429–30. Button was applied in In re Primus, 436 U.S. 412 (1978) , in which the Court found foreclosed by the First and Fourteenth Amendments the discipline visited upon a volunteer lawyer for the American Civil Liberties Union who had solicited someone to utilize the ACLU to bring suit to contest the sterilization of Medicaid recipients. Both the NAACP and the ACLU were organizations that engaged in extensive litigation as well as lobbying and educational activities, all of which were means of political expression. “[T]he efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants.” Id. at 431. “[C]ollective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.” Id. at 426. However, ordinary law practice for commercial ends is not given special protection. “A lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 459 (1978) . See also Bates v. State Bar of Arizona, 433 U.S. 350, 376 n.32 (1977) .  

207 Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964) .  

208 United Mine Workers v. Illinois State Bar Ass’n, 389 U.S. 217 (1967) .  

209 United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971) .  

210 Id. at 578–79. These cases do not, however, stand for the proposition that individuals are always entitled to representation of counsel in administrative proceedings. See Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305 (1985) (upholding limitation to $10 of fee that may be paid attorney in representing veteran’s death or disability claims before VA).  

211 E.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907–15 (1982) (concerted activities of group protesting racial bias); Healy v. James, 408 U.S. 169 (1972) (denial of official recognition to student organization by public college without justification abridged right of association). The right does not, however, protect the decision of entities not truly private to exclude minorities. Runyon v. McCrary, 427 U.S. 160, 175–76 (1976) ; Norwood v. Harrison, 413 U.S. 455, 469–70 (1973) ; Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93–94 (1945) ; Roberts v. United States Jaycees, 468 U.S. 609 (1984) .  

212 City of Dallas v. Stanglin, 490 U.S. 19 (1989) . The narrow factual setting—a restriction on adults dancing with teenagers in public—may be contrasted with the Court’s broad assertion that “coming together to engage in recreational dancing . . . is not protected by the First Amendment.” Id. at 25.  

213 468 U.S. 609 (1984) .  

214 481 U.S. 537 (1987) .  

215 487 U.S. 1 (1988) .  

216 468U.S. at 621 468U.S. at 621.  

217 481U.S. at 546 481U.S. at 546.  

218 487U.S. at 12 487U.S. at 12.  

219 468U.S. at 626–27 468U.S. at 626–27.  

220 468U.S. at 628 468U.S. at 628.  

221 The Court in Rotary rejected an assertion that Roberts had recognized that Kiwanis Clubs are constitutionally distinguishable, and suggested that a case–by–case approach is necessary to determine whether “the ‘zone of privacy’ extends to a particular club or entity.” 481U.S. at 547 481U.S. at 547 n.6.  

222 487U.S. at 15 487U.S. at 15.  

Supplement Footnotes

77 O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (allegation that city removed petitioner’s company from list of those offered towing business on a rotating basis, in retaliation for petitioner’s refusal to contribute to mayor’s campaign, and for his support of mayor’s opponent, states a cause of action under the First Amendment). See also Board of County Comm’rs v. Umbehr, 518 U.S. 668 (1996) (termination or non– renewal of a public contract in retaliation for the contractor’s speech on a matter of public concern can violate the First Amendment).  

68 515 U.S. 557 (1995) .  

69 515U.S. at 580 515U.S. at 580.  

70 515U.S. at 580–81 515U.S. at 580–81.  

71 120S. Ct. 2446 (2000).  

72 120 S. Ct. at 2451.  

73 120 S. Ct. at 2452.  

74 120 S. Ct. at 2453.  

75 120 S. Ct. at 2453.  

76 120 S. Ct. at 2454. 

223 Kusper v. Pontikes, 414 U.S. 51, 56–57 (1973) .  

224 393 U.S. 23 (1968) .  

225 E.g., Rosario v. Rockefeller, 410 U.S. 752 (1973) (time deadline for enrollment in party in order to vote in next primary); Kusper v. Pontikes, 414 U.S. 51 (1973) (barring voter from party primary if he voted in another party’s primary within preceding 23 months); American Party of Texas v. White, 415 U.S. 767 (1974) (ballot access restriction); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) (number of signatures to get party on ballot); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 (1982) (limit on contributions to associations formed to support or oppose referendum measure); Clements v. Fashing, 457 U.S. 957 (1982) (resign–to–run law).  

226 Williams v. Rhodes, 393 U.S. 23, 30–31 (1968) ; Bullock v. Carter, 405 U.S. 134, 142–143 (1972) ; Storer v. Brown, 415 U.S. 724, 730 (1974) ; Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 183 (1979) .  

227 Thus, in Storer v. Brown, 415 U.S. 724, 736 (1974) , the Court found “compelling” the state interest in achieving stability through promotion of the two–party system, and upheld a bar on any independent candidate who had been affiliated with any other party within one year. Compare Williams v. Rhodes, 393 U.S. 23, 31–32 (1968) (casting doubt on state interest in promoting Republican and Democratic voters). The state interest in protecting the integrity of political parties was held to justify requiring enrollment of a person in the party up to eleven months before a primary election, Rosario v. Rockefeller, 410 U.S. 752 (1973) , but not to justify requiring one to forgo one election before changing parties. Kusper v. Pontikes, 414 U.S. 51 (1973) . See also Civil Service Comm’n v. National Ass’n of Letter Carriers, 413 U.S. 548 (1973) (efficient operation of government justifies limits on employee political activity); Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982) (permitting political party to designate replacement in office vacated by elected incumbent of that party serves valid governmental interests). Storer v. Brown was distinguished in Anderson v. Celebrezze, 460 U.S. 780 (1983) , holding invalid a requirement that independent candidates for President and Vice–President file nominating petitions by March 20 in order to qualify for the November ballot; state interests in assuring voter education, treating all candidates equally (candidates participating in a party primary also had to declare candidacy in March), and preserving political stability, were deemed insufficient to justify the substantial impediment to independent candidates and their supporters. See also Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) (state interests are insubstantial in imposing “closed primary” under which a political party is prohibited from allowing independents to vote in its primaries).  

228 Elrod v. Burns, 427 U.S. 347 (1976) . The limited concurrence of Justices Stewart and Blackmun provided the qualification for an otherwise expansive plurality opinion. Id. at 374.  

229 Branti v. Finkel, 445 U.S. 507, 518 (1980) . On the same page, the Court refers to a position in which “party membership was essential to a discharge of the employee’s governmental responsibilities.” (emphasis supplied). A great gulf separates “appropriate” from “essential,” so that much depends on whether the Court was using the two words interchangeably or whether the stronger word was meant to characterize the position noted and not to particularize the standard.  

230 Justice Powell’s dissents in both cases contain lengthy treatments of and defenses of the patronage system as a glue strengthening necessary political parties. Id. at 520.  

231 497 U.S. 62 (1990) . Rutan was a 5–4 decision, with Justice Brennan writing the Court’s opinion. The four dissenters indicated, in an opinion by Justice Scalia, that they would not only rule differently in Rutan, but that they would also overrule Elrod and Branti.  

232 Democratic Party v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981) . See also Cousins v. Wigoda, 419 U.S. 477 (1975) (party rules, not state law, governed which delegation from State would be seated at national convention; national party had protected associational right to sit delegates it chose).  

233 Buckley v. Valeo, 424 U.S. 1, 60–84 (1976) .  

234 Id. at 64 (footnote citations omitted).  

235 Id. at 66–68.  

236 Id. at 68–74. Such a showing, based on past governmental and private hostility and harassment, was made in Brown v. Socialist Wrokers ’74 Campaign Comm., 459 U.S. 87 (1982) .  

237 424U.S. at 74–84 424U.S. at 74–84.  

238 The Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 537 , 29 U.S.C. §§ 411 –413, enacted a bill of rights for union members, designed to protect, inter alia, freedom of speech and assembly and the right to participate in union meetings on political and economic subjects.  

239 Sec. 8(a)(3) of the Labor–Management Relations Act of 1947, 61 Stat. 140 , 29 U.S.C. Sec. 158 (a)(3), permits the negotiation of union shop but not closed shop agreements, which, however, may be outlawed by contrary state laws. Sec. 14(b), 61 Stat. 151 , 29 U.S.C. Sec. 164 (b). See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949) ; AFL v. American Sash & Door Co., 335 U.S. 538 (1949) . In industries covered by the Railway Labor Act, union shop agreements may be negotiated regardless of contrary state laws. 64 Stat. 1238 , 45 U.S.C. Sec. 152 , Eleventh; Railway Employees Dept. v. Hanson, 351 U.S. 225 (1956) .  

240 International Ass’n of Machinists v. Street, 367 U.S. 740 (1961) . The quoted phrase is at 749.  

241 Id. at 775 (Justice Douglas concurring), 780 (Justice Black dissenting), 797 (Justices Frankfurter and Harlan dissenting). On the same day, a majority of the Court declined, in Lathrop v. Donohue, 367 U.S. 820 (1961) , to reach the constitutional issues presented by roughly the same fact situation in a suit by lawyers compelled to join an “integrated bar.” These issues were faced squarely in Keller v. State Bar of California, 496 U.S. 1 (1990) . An integrated state bar may not, against a members’ wishes, devote compulsory dues to ideological or other political activities not “necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal service available to the people of the State.” Id. at 14.  

242 431 U.S. 209 (1977) . That a public entity was the employer and the employees consequently were public employees was deemed constitutionally immaterial for the application of the principles of Hanson and Street, id. at 226–32, but Justice Powell found the distinction between public and private employment crucial. Id. at 244.  

243 Id. at 217–23. The compelled support was through the agency shop device. Id. at 211, 217 n. 10. Justice Powell, joined by Chief Justice Burger and Justice Blackmun, would have held that compelled support by public employees of unions violated their First Amendment rights. Id. at 244. For an argument over the issue of corporate political contributions and shareholder rights, see First National Bank v. Bellotti, 435 U.S. 765, 792–95 (1978) , and id. at 802, 812–21 (Justice White dissenting).  

244 431U.S. at 232–37 431U.S. at 232–37.  

245 Id. at 237–42. On the other hand, nonmembers may be charged for such general union expenses as contributions to state and national affiliates, expenses of sending delegates to state and national union conventions, and costs of a union newsletter. Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507 (1991) .  

246 Ellis v. Brotherhood of Railway, Airline & Steamship Clerks, 466 U.S. 435 (1984) .  

247 Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986) .  

248 Id. at 309.  

249 Madison School Dist. v. WERC, 429 U.S. 167 (1977) . 

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