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Published online by Cambridge University Press: 02 September 2013
The state of modern jurisprudence is not inaptly reflected in the range of considerations to which this title might give rise. If the illusion of certitude still survived as a legal premise, if the judicial process were conceived in terms of “tidy formulas,” one could feel more assurance that the enterprise itself is meaningful and potentially fruitful. But if the past fifty years have taught us nothing else, they have made us aware of the complex and ambiguous evaluation of alternatives that underlies the judicially enforced command. Even the word “constitutionality,” which once seemed to express a coherent idea, has lost its definable contours as understanding of public law has progressed. The salutary result of all this is that we recognize the great network of imponderables which we must assess before declaring with confidence that a given exercise of governmental power conflicts with our fundamental law. But by the same token uncertainties have been multiplied, and flat statement and prediction have become increasingly hazardous. The penalty of understanding is doubt.
1 Wolf v. Colorado, 338 U.S. 25, 27 (1949).
2 See his “The Logic and Rhetoric of Constitutional Law,” in Selected Essays on Constitutional Law (5 vols.; Chicago, 1948), Vol. 1, p. 474Google Scholar.
3 For an exhaustive examination of the concept's genesis and its appearances in court decisions, see Antieau, Chester J., “The Rule of Clear and Present Danger: Scope of Its Applicability,” Michigan Law Review, Vol. 48, pp. 811 ff. (1950)CrossRefGoogle Scholar; Antieau, , “Clear and Present Danger: Its Meaning and Significance,” Notre Dame Law Review, Vol. 25, pp. 603 ff. (1950)Google Scholar.
4 Mr. Justice Frankfurter, concurring in Pennekamp v. Florida, 328 U.S. 331, 353 (1946).
5 Gitlow v. New York, 268 U.S. 652 (1925).
6 Dunne v. United States, 138 F. 2d 137 (1943).
7 19 United States Law Week, 3163–3167.
8 “In other words, when the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil, is not open to consideration.” Gitlow v. New York, 268 U.S. 652, 670 (1925).
9 See Mr. Justice Holmes' dissent in Gitlow v. New York, 268 U.S. 652, 672 (1925), and in Abrams v. United States, 250 U.S. 616, 624 (1919); and the concurrence of Mr. Justice Brandeis in Whitney v. California, 274 U.S. 357, 373 (1927).
10 Beginning with Herndon v. Lowry, 301 U.S. 242 (1937), wherein the Gitlow case was ostensibly distinguished, the Supreme Court has undermined the doctrine in decisions involving a variety of substantive issues—Thornhill v. Alabama, 310 U.S. 88 (1940); Taylor v. Mississippi, 319 U.S. 583 (1943); West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Thomas v. Collins, 323 U.S. 516 (1945)—although it has never been clearly overruled.
11 U.S. v. Dennis, 183 F. 2d 201 (1950).
12 American Communications Association v. Douds, 339 U.S. 382 (1950).
13 Bridges v. California, 314 U.S. 252, 261 (1941); Dennis v. United States, 19 United Stales Law Week 4388 (1951).
14 See Note, “The Presumption of Constitutionality Reconsidered,” Columbia Law Review, Vol. 36, p. 283 (1936)CrossRefGoogle Scholar.
15 Minersville School District v. Gobitis, 310 U.S. 586, 600 (1940).
16 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 650 (1943).
17 Minersville School District v. Gobitis, 310 U.S. 586, 600 (1940).
18 Ibid., at p. 600.
19 323 U.S. 516, 530 (1945); also see United States v. Carolene Products, 304 U.S. 144, 152, note 4 (1938); Schneider v. State, 308 U.S. 147, 161 (1939); Note, “Presumption of Constitutionality Not Applicable to Statutes Dealing with Civil Liberties,” Columbia Law Review, Vol. 40, p. 531 (1940)CrossRefGoogle Scholar; Note, “Judicial Review and the Feinberg Law: The Presumption of Validity,” Illinois Law Review, Vol. 45, p. 274 (1950)Google Scholar. Especially see Mr. Justice Frankfurter, concurring in Kovacs v. Cooper, 336 U.S. 77, 89 (1949).
20 19 United States Law Week 4388, 4407.
21 323 U.S. 516.
22 319 U.S. 141 (1943).
23 19 United States Law Week 4388, 4407.
24 E.g., American Communications Association v. Douds, 339 U.S. 382, 415; Garner v. Board, 19 United States Law Week 4351, 4353 (1951).
25 Cf. Mr. Justice Jackson, concurring in Dennis v. United States, 19 United States Law Week 4388, 4397.
26 Taylor v. Mississippi, 319 U.S. 583 (1943). I am mindful of the contrary suggestion made by Mr. Justice Holmes in the Gitlow case, 268 U.S. 652, 672. But if free speech is to be abridged for reasons of military security, it would seem that the decision should be made by Congress, not by the states.
27 Ogden v. Saunders, 12 Wheat. 213, 270 (1827).
28 “In essence, the problem is one of weighing the probable effects of the statute upon the free exercise of the right of speech and assembly against the congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce ….” American Communications Association v. Douds, 339 U.S. 382, 400 (1950).
29 Hartzel v United States, 322 U.S. 680, 686 (1944).
30 “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.” Holmes, J., dissenting in Abrams v. United States, 250 U.S. 616, 628. “As applied to the defendants [the law] punishes them although what they communicated is not claimed or shown to have been done with an evil or sinister purpose, to have advocated or incited subversive action against the nation or state, or to have threatened any clear and present danger to our institutions or our government.” Taylor v. Mississippi, 319 U.S. 583, 589, 590.
31 322 U.S. 680, 690.
32 Gitlow v. New York, 268 U.S. 652, 661, 664, 665; Whitney v. California, 274 U.S. 357, 376 (concurring opinion); American Communications Association v. Douds, 339 U.S. 382, 396; Judge Hand's opinion in United States v. Dennis, 183 F. 2d 201, 206, recognizes that persuasion is distinguishable, if not separable, from a call to action, and that the difference is of constitutional significance, at least when political or religious speech is involved. The concurrence of Judge Chase repeats the well-known distinction between advocacy and prophecy; and Mr. Justice Frankfurter makes much of the distinction between “advocacy and the interchange of ideas” in the Dennis case, 19 United States Law Week 4388, 4409.
33 American Communications Association v. Douds, 339 U.S. 382, 400–406, 408–412; United States v. Bollard, 322 U.S. 78, 92 (1944).
34 See e.g., Schneiderman v. United States, 320 U.S. 118, 154; Chafee, Z., Free Speech in the United States (Boston, 1946), pp. 471–482Google Scholar.
35 American Communications Association v. Douds, 339 U.S. 382, 422 (concurring and dissenting, each in part).
36 Subversive Activities Control Act of 1950, Public Law 831, 81st Cong., 2d sess.
37 Mr. Justice Douglas, dissenting in the Dennis case, 19 United States Law Week 4388, 4415, objects that, if freedom of speech turns not on what is said but on the intent with which it is said, “we enter territory dangerous to the liberties of every citizen.” The criticism is valid if intent is the only criterion of judgment; but when it is combined with other criteria, intent is substantially helpful in assessing the degree of danger.
38 Whitney v. California, 274 U.S. 357, 377.
39 United States v. Dennis, 183 F. 2d 201, 212.
40 19 United States Law Week 4388, 4392.
41 New York Times, Oct. 19, 1949, p. 15Google Scholar.
42 This may also be the meaning of Mr. Chief Justice Vinson's words in American Communications Association v. Douds, 339 U.S. 382, 396: “The Board does not contend that political strikes, the substantive evil at which #9(h) is aimed, are the present or impending products of advocacy of the doctrines of Communism or the expression of belief in the overthrow of the Government by force. On the contrary it points out that such strikes are called by persons who, so Congress has found, have the will and power to do so without advocacy or persuasion that seeks acceptance in the competition of the market. Speech may be fought with speech. Falsehoods and fallacies must be exposed, not suppressed, unless there is not sufficient time to avert the evil consequences of noxious doctrine by argument and education…. But force may and must be met with force. Section 9 (h) is designed to protect the public not against what Communists and others identified therein advocate and believe, but against what Congress has concluded they have done and are likely to do again.” Quaere: if the advocacy and belief in communist doctrines is not the trigger that detonates the political strike, then why should advocacy and belief be penalized? Why should not the law punish those who foment, or conspire to foment, political strikes? Of course the evil apprehended by the legislature is not the belief or membership itself, but its probable results; but that is true of all free speech statutes, and furnishes no ground for distinguishing this from any other. Cf. Dennis v. United States, 19 United States Law Week 4388, 4391, 4392, in which the Chief Justice explains that the clear and present danger rule was not applicable in the Douds case, because the sanction on speech was “indirect”; Congress had not intended to punish belief, but only to regulate union affairs. The “direct-indirect” distinction has often obscured clarity of judgment in the commerce clause area, and little purpose is served by importing it into the realm of free speech.
43 Nathanson, N. L., “The Communist Trial and the Clear-and-Present-Danger Test,” Harvard Law Review, Vol. 63, pp. 1167, 1171 (1950)CrossRefGoogle Scholar.
44 274 U.S. 357, 377, 378.
45 E.g., Bridges v. California, 314 U.S. 252, 263; Thomas v. Collins, 323 U.S. 516, 530; Pennekamp v. Florida, 328 U.S. 331, 334.
46 American Communications Association v. Douds, 339 U.S. 382, 397; Dennis v. United States, 19 United States Law Week 4388, 4392.
47 United States v. Dennis, 183 F. 2d 201.
48 Bridges v. California, 314 U.S. 252, 263.
49 Whitney v. California, 274 U.S. 357, 377.
50 Pennekamp v. Florida, 328 U.S. 331, 353 (concurring opinion).
51 Schneider v. State, 308 U.S. 147, 161 (1939).
52 Holmes, J., dissenting in Abrams v. United States, 250 U.S. 616, 627, 628.
53 American Communications Association v. Douds, 339 U.S. 382, 404.
54 See the opinion of Mr. Chief Justice Hughes in Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 351 (1938).
55 American Communications Association v. Douds, 339 U.S. 382, 420, 421 (dissenting in part); Garner v. Board, 19 United States Law Week 4351, 4354; cf. Thornhill v. Alabama, 310 U.S. 88, 97; Winters v. New York, 333 U.S. 507, 518 (1948).
56 The Chief Justice has held that a charge of vagueness cannot be sustained against the Smith Act; the addition of “clear and present danger” to the proscriptions of the law lends it sufficient definiteness. Dennis v. United States, 19 United States Law Week 4388, 4394. Considering the judicial uncertainty as to the meaning of the “clear and present danger” phrase, this may seem doubtful reasoning. But the law does not demand the impossible.
57 339 U.S. 382, 404.
58 Schneider v. State, 308 U.S. 147, 160, 161; Saia v. New York, 334 U.S. 558, 562 (1947); Kovacs v. Cooper, 336 U.S. 77, 87.
59 Near v. Minnesota, 283 U.S. 697 (1931); Lovell v. Griffin, 303 U.S. 444, 451 (1938).
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