First Amendment balancing Summary

  • Last updated on November 11, 2022

Weighing of different interests involved in cases raising First Amendment claims, typically the free speech rights of an individual versus the potential harm posed to society as a whole.

The Supreme Court’s First Amendment jurisprudence gradually evolved after World War I. Earlier, the Court had invoked various tests for resolving First Amendment conflicts, including the well-known clear and present danger testClear and present danger test first invoked in Schenck v. United States[case]Schenck v. United States[Schenck v. United States] (1919). During the 1947-1957 period, the Court, usually implicitly but sometimes explicitly, appears to have been guided by a balancing test, through which the Court sought to weigh competing interests and claims against each other.First Amendment speech testsFreedom, speech of

Ten Years of Balancing

All legal cases, by definition, involve competing considerations, and therefore any jurisprudence involves balancing, as indeed does virtually all private decision making. However, the concept of First Amendment balancing is particularly apparent in the Court’s First Amendment jurisprudence during the 1947-1957 period because of the manner and outcome of its rulings. When the Court seems to have invoked balancing during this period, it invariably gave more weight to perceived societal interests over First Amendment claims of individuals and organizations. Therefore, in the view of its critics, the Court claimed to be impartially balancing competing interests while in fact placing a thumb on the social side of the scales. After 1957, the Court largely abandoned the balancing test in First Amendment cases, instead generally relying on other tests such as the preferred freedoms doctrine, which tended to yield results favoring individual rights.

Chief Justice Fred M. Vinson believed that the Supreme Court had a duty to determine which interests needed greater protection in cases in which constitutional principles conflict.

(Collection of the Supreme Court of the United States)

American Communications Association v. Douds[case]American Communications Association v. Douds[American Communications Association v. Douds](1950) is one of the relatively few cases in which the Court explicitly elaborated balancing considerations. At issue was a provision of the 1947 Taft-HartleyTaft-Hartley Act (Labor-Management Relations) Act that required all union officials to sign noncommunist affidavits in order to maintain their offices and for their unions to qualify for various benefits under existing federal labor laws. Chief Justice Fred M. Vinson’s majority opinion upholding the validity of the contested provision declared that the clear and present danger standard of Schenck was not intended to create an absolutist test. He stated that when a statute’s effect on a person’s ability to exercise First Amendment rights was relatively small but the public interest to be protected was significant, a rigid test that necessitated the demonstration of imminent danger to the nation’s security was an “absurdity.” Instead, Vinson said, the Court’s duty was to determine which interest needed greater protection under the particular circumstances of the case. He weighed the likely effects of the statute on the free exercise of First Amendment rights against the “congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce” and that communists “pose continuing threats to the public interest when in positions of union leadership.”

In Dennis v. United States[case]Dennis v. United States[Dennis v. United States] (1951), the Court upheld the conviction of top U.S. Communist Party leaders for conspiracy to advocate and organize the overthrow of the government. In his concurring opinion, Justice Felix Frankfurter, a leading advocate of balancing, stated, “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 nonEuclidean problem to be solved.”


Frankfurter’s reference to inflexible “dogmas” was a response to critics of balancing, who claimed that it was consistently invoked in a manner that overlooked or watered down compelling free speech claims. Among the critics of balancing was Justice Hugo L. Black, who was associated with the absolutist view that held that absolutely no law should be passed that abridged First AmendmentFirst Amendment absolutism rights. In Barenblatt v. United States[case]Barenblatt v. United States[Barenblatt v. United States] (1959), Black declared that the Court’s application of balancing amounted to amending the First Amendment to read, “Congress shall pass no law abridging freedom of speech, press, assembly, and petition unless Congress and the Supreme Court reach the joint conclusion that on balance the interest of the government in stifling these freedoms is greater than the interest of the people in having them exercised.”

Similarly, in Smith v. California[case]Smith v. California[Smith v. California] (1959), Black argued that because the First Amendment said Congress could pass “no law abridging” free speech rights, this meant that the Constitution placed these rights above any competing claims, and therefore no federal agency, including the Court, had the power or authority to subordinate speech and press to what they think are more important interests.

Further Reading
  • Abernathy, M. Glenn, and Barbara Perry. Civil Liberties Under the Constitution. Columbia: University of South Carolina Press, 1993.
  • Barker, Lucius, and Twiley W. Barker, Jr. Civil Liberties and the Constitution. Englewood Cliffs, N.J.: Prentice-Hall, 1994.
  • Emerson, Thomas. The System of Freedom of Expression. New York: Vintage Books, 1970.

American Communications Association v. Douds

Bad tendency test

Clear and present danger test

Dennis v. United States

First Amendment absolutism

First Amendment speech tests

Preferred freedoms doctrine

Speech and press, freedom of

Categories: History