That was a long time ago, when I was a political science student at San Francisco State University.
The case is
Brandenburg v. Ohio (1969). Douglas, a First Amendment purist, expounded his problems with the "clear and present danger" doctrine limiting free speech.
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, I desire to enter a caveat.
The "clear and present danger" test was adumbrated by Mr. Justice Holmes in a case arising during World War I--a war "declared" by the Congress, not by the Chief Executive. The case was Schenck v. United States, 249 U.S. 47, 52, where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort. The First Amendment was tendered as a defense. Mr. Justice Holmes, in rejecting that defense, said:
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.
. . . Those, then, were the World War I cases that put the gloss of "clear and present danger" on the First Amendment. Whether the war power--the greatest leveler of them all--is adequate to sustain that doctrine is debatable. <452> The dissents in Abrams, Schaefer, and Pierce show how easily "clear and present danger" is manipulated to crush what Brandeis called "he fundamental right of free men to strive for better conditions through new legislation and new institutions" by argument and discourse (Pierce v. United States, supra, at 273) even in time of war. Though I doubt if the "clear and present danger" test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace . . . .
Mr. Justice Holmes, though never formally abandoning the "clear and present danger" test, moved closer to the First Amendment ideal when he said in dissent in Gitlow v. New York, 268 U.S. 652, 673:
Every idea is an incitement. It offers itself for belief, and, if believed, it 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 should be given their chance and have their way.
We have never been faithful to the philosophy of that dissent. <453>
The Court, in Herndon v. Lowry, 301 U.S. 242, overturned a conviction for exercising First Amendment rights to incite insurrection because of lack of evidence of incitement. Id. at 259-261. And see Hartzel v. United States, 322 U.S. 680. In Bridges v. California, 314 U.S. 252, 261-263, we approved the "clear and present danger" test in an elaborate dictum that tightened it and confined it to a narrow category. But in Dennis v. United States, 341 U.S. 494, we opened wide the door, distorting the "clear and present danger" test beyond recognition.
Judge Learned Hand, who wrote for the Court of Appeals in affirming the judgment in Dennis, coined the "not improbable" test, 183 F.2d 201, 214, which this Court adopted and which Judge Hand preferred over the "clear and present danger" test. Indeed, in his book, The Bill of Rights 59 (1958), in referring to Holmes' creation of the "clear and present danger" test, he said, "I cannot help thinking that, for once, Homer nodded."
My own view is quite different. I see no place in the regime of the First Amendment for any "clear and present danger" test, whether strict and tight, as some would make it, or free-wheeling, as the Court in Dennis rephrased it.
When one reads the opinions closely and sees when and how the "clear and present danger" test has been applied, great misgivings are aroused. First, the threats were often loud, but always puny, and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment.
Action is often a method of expression, and within the protection of the First Amendment.
Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court. May he be indicted?
Suppose one rips his own Bible to shreds to celebrate his departure from one "faith" and his embrace of atheism. May he be indicted?
. . . One's beliefs have long been thought to be sanctuaries which government could not invade. Barenblatt is one example of the ease with which that sanctuary can be violated. The lines drawn by the Court between the criminal act of being an "active" Communist and the innocent act of being a nominal or inactive Communist mark the difference only between deep and abiding belief and casual or uncertain belief. But I think that all matters of belief are beyond the reach of subpoenas or the probings of investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep-seated fault in the infamous loyalty security hearings which, since 1947, when President Truman launched them, have processed 20,000,000 men and women. Those hearings were primarily concerned with one's thoughts, ideas, beliefs, and convictions. They were the most blatant violations of the First Amendment we have ever known.
The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.
The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.
This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U.S. 513, 536-537 (DOUGLAS, J., concurring). They are indeed inseparable, and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas, as in Yates, and advocacy of political action, as in Scales. The quality of advocacy turns on the depth of the conviction, and government has no power to invade that sanctuary of belief and conscience.
Douglas' opinions almost rise to the level of literature. I hope you enjoied reading that.
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