Balancing Test

Author:Martin Shapiro

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Although the intellectual origins of the balancing of interests formula lie in ROSCOE POUND'S sociological jurisprudence, the formula was introduced into constitutional law as a means of implementing the Supreme Court's oftrepeated announcement that FIRST AMENDMENT rights are not absolute. In determining when infringement on speech may be justified constitutionally, the Court may balance the interest in FREEDOM OF SPEECH against the interest that the infringing statute seeks to protect. Thus the Court may conclude that the interests in NATIONAL SECURITY protected by the Smith Act outweigh the interests in speech of those who advocate forcible overthrow of the government, or that the free speech interests of pamphleteers outweigh the interest in clean streets protected by an antilittering ordinance forbidding the distribution of handbills.

The 1950s campaign against alleged subversives brought two interlocking problems to the Supreme Court. The dominant free speech DOCTRINES of the Court were PREFERRED FREEDOMS and the CLEAR AND PRESENT DANGER TEST. Because alleged subversives were exercising preferred speech rights and the government was unprepared

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to offer evidence that their speech did constitute a present danger of violent overthrow of the government, the Court found it difficult under the existing formulas to uphold government anticommunist action. Because established First Amendment doctrine appeared to be on a collision course with an anticommunist crusade that appeared to enjoy overwhelming popular support, free speech provided the crucial arena for the penultimate crisis of the judicial self-restraint movement. (The ultimate crisis came in BROWN V. BOARD OF EDUCATION, 1954.) Although the logical implication of that movement suggested that the Court ought never declare an act of Congress unconstitutional as a violation of the BILL OF RIGHTS, the Court was not prepared to go so far. The Justices' dilemma was that they were the inheritors of pro-freedom of speech doctrines but wished to uphold infringements upon speech without openly abdicating their constitutional authority.

The way out of this dilemma was the balancing formula. It allowed the Court to vindicate legislative and executive anticommunist measures case by case without ever flatly announcing that the Court had gone out of the business of enforcing the First Amendment. LEARNED HAND'S "clear and probable" or "discounting" formula...

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