I. “A Question of Proximity and Degree”

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

– The First Amendment to the US Constitution


The fundamental freedoms of speech, assembly, and association have been enshrined in our Constitution since the ratification of the Bill of Rights in 1791, and were expanded to include all Americans with the ratification of the Fourteenth Amendment and its key ‘equal protection’ clause in 1868. Since then, there have been many legal cases that have expanded upon or conversely, limited, the speech, assembly, and association rights recognized under the First Amendment. Many of the legal cases and decisions with which we are most familiar and which have had the most lasting impacts on our present conceptions of freedom of speech and assembly were decided in the 20th century, particularly during the tense domestic situation caused by the American entry into World War I. These cases, decided on and written about by such Supreme Court judicial giants as Justices Louis Brandeis and Oliver Wendell Holmes, came to define our early understanding of how the right of free speech could be limited by the government depending on the content and character of that speech.

Schenck v. United States (1919)

The first of these important cases, Schenck v. United States, dates from 1919 and gives us one of the most important and popularly-quoted free speech notions of all time. This case was one of many brought by the US government during the first World War that fell under the newly passed Espionage Act (1917), which criminalized acts detrimental to the national security of the US, especially during and related to the war effort. This case revolved around the mailing of printed Socialist circulars which advocated for the obstruction of the military draft then underway to fill out the American forces fighting in Europe, a position which the government argued was plainly detrimental to the US war effort. In his Supreme Court opinion affirming the conviction under the Espionage Act, Justice Oliver Wendell Holmes discussed when, how, and why the government can place limits on the fundamental rights of freedom of speech, press, and association. It is in this opinion that we receive one of the most oft-quoted pieces of Supreme Court jurisprudence with respect to the First Amendment, the famed ‘fire in a crowded theater’ test. The actual legal name for this, and the way I will be referring to it from here on out, is the ‘clear and present danger’ test, and it is one of the first true legal standards which places bounds on freedom of speech. Justice Holmes states (emphasis added):

“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 theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force… 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.”

In this opinion, Justice Holmes invents the ‘clear and present danger’ test, showing that speech is permissible as long as it does not create a danger that is both immediate and serious, and that the danger it causes is something that “Congress has a right to prevent.” His last sentence in the quote above sums it up nicely, as he writes that it is a question of both “proximity and degree,” as the danger created by the specific speech act must be both close in “proximity” to the speech act and large enough in “degree” as to create a danger that Congress would be in its rights to legislate or act against. This test was used throughout the early 1920s to prosecute offenders under the Espionage Act and related state laws, but as I will discuss, Justice Holmes and some of his fellow Justices, notably Justice Louis Brandeis, became disillusioned over time with the precedent they set and its abuse by the government, and took jurisprudential steps to move the law to a more permissive standard.

Oliver Wendell Holmes
Justice Oliver Wendell Holmes        Image Credit: Wikimedia

Whitney v. California (1927)

One such case where the Justices sought to move to a broader, more lenient standard of permissible speech was the 1927 Supreme Court decision in Whitney v. California. This case related to a one Ms. Charlotte Whitney, who as a purported founding member of the Communist Labor Party of California was tried under that state’s criminal syndicalism act, which criminalized inciting crime and violence or threatening the overthrow of the government by unlawful means. The state, which ended up winning its case against Ms. Whitney in a unanimous decision in front of the Supreme Court, believed that restricting the rights of free speech and assembly in the manner it did under the criminal syndicalism act was necessary to the continuance of the state’s government. The majority opinion, agreed to by 7 of the 9 Justices, used the ‘clear and present danger’ test established under Schenck to find Ms. Whitney guilty of the charges presented, as the activities advocated by the Communist Labor Party were sufficient to threaten the California state government, although the defendant denied this to the end.

Although they agreed with the end result of the majority opinion, a conviction for Ms. Whitney, Justices Louis Brandeis and Oliver Wendell Holmes, the Justices who drove the Schenck opinion, decided to pen a separate concurring opinion to further elaborate upon their ideas with respect to the limitations that should or should not be placed on the fundamental rights declared in the First Amendment. Justice Brandeis wrote this concurrence, which has been lauded by many later observers as one of the finest pure defenses of the freedom of speech ever penned by a Justice. In it, he discusses the standard set in Schenck, the limitations inherent within that ‘clear and present danger’ test, the reasons why the framers of the Constitution decided to include freedom of speech in the Bill of Rights, and pushes for a more stringent legal standard than the Schenck test, one which would be adopted in a slightly varied form some 40 years later. As this concurrence is so critical to understanding the First Amendment in our modern era, I’m going to break this opinion down in stages. First, I’ll touch on Brandeis’s description of the Schenck standard, and how it was decided on (emphasis added):

“The right of free speech, the right to teach, and the right of assembly are, of course, fundamental rights…These may not be denied or abridged. 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. That the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent has been settled.”

Here, Justice Brandeis details the necessity of the freedoms of speech and assembly before describing the limitations which have been placed thereon by the Schenck decision. He restates the ‘clear and present danger’ test in slightly different wording, but ensures that he captures the three most important parts of that test: clarity, imminence, and the right of the State to regulate the danger which is so clear and imminent. If these three bars are not met, the speech should not be prohibited under Schenck, according to Brandeis. He does explain that the rights of speech and assembly are not unlimited, and the State may regulate them to ensure its own survival and other important societal ends. In the next passage I will relate, however, Brandeis undercuts the ‘clear and present danger’ test directly and calls out the Supreme Court for its lack of specificity:

“This Court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present, and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgement of free speech and assembly as the means of protection.”

Justice Brandeis, in this passage, blames the Court for not delineating what it means when it says “clear” or “present”, and to which “degree” the speech must be problematic for the State to intervene. Obviously, if none of the elements of the Schenck test are plainly defined, then there is no way to reasonably use that standard to find someone guilty or innocent of a violation barring extraordinary circumstances. His idea that the words within the ‘clear and present danger’ test need specific definitions was implicitly stating that the standard itself was not all that useful in these cases, as it could be used to fit any definition the Justices so wished. After this passage, Justice Brandeis goes farther in discussing why we Americans have a fundamental right to freedom of speech and assembly in the first place, and argues for a more expansive freedom than is provided by Schenck (emphasis added):

“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. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”

Louis Brandeis
Justice Louis Brandeis     Image Credit: WBUR

In this section, Justice Brandeis discusses the original intent behind the First Amendment protections of speech and assembly and shows just why the framers of the Constitution wished to protect speech and assembly rights in the first place. He argues that freedom of speech and assembly are critical to “the discovery and spread of political truth,” and that “discussion affords ordinarily adequate protection against the dissemination of noxious doctrine.” By this Brandeis means that freedom of speech will lead to discussion of ideas, whether good or bad, and the better ideas will end up beating out the “noxious” ones. He also argues that our founders “recognized the risks to which all human institutions are subject,” and that they understood that “the path of safety” for a government to remain stable “lies in the opportunity to discuss freely supposed grievances and proposed remedies.” His argument is for speech and assembly in a broader sense, and he continues on by proposing what looks to be a more expansive and permissive structure for assessing speech and assembly rights cases, one which would be picked up by future Supreme Courts. Brandeis writes (emphasis and [slight changes] added):

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one…But even advocacy of violation [of the law], however reprehensible morally, 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. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind.

In this passage, Justice Brandeis delves into his idea for a deeper, more lenient idea of free speech and assembly, one which would be incredibly influential for the future rulings of the Supreme Court. Brandeis writes about how “fear of serious injury alone cannot justify suppression of free speech and assembly,” an opinion which seems to contradict many of the prior rulings on the subject and could be seen as being in conflict with the Schenck test. He discusses an excellent historical example of how irrational fears of free speech and assembly, in this instance of speech and assembly by women in colonial America, can lead to horrific acts of violence against innocent persons, acts which could have been entirely avoided by a more permissive atmosphere around these acts. He talks about how “reasonable ground[s]” must be required to justify suppression of speech of assembly, and that mere fear of “incitement” or “serious injury” does not constitute those reasonable grounds. In the final sentence, Brandeis sets out the outlines of a new test for speech and assembly rights, based on the differences between acts of “advocacy and incitement,” “preparation and attempt,” and “assembling and conspiracy”. This ‘test’, although not fully formed, would provide the backbone of our modern conception of freedom of speech and assembly, one that would be created by the Supreme Court in its landmark 1969 decision in Brandenburg v. Ohio.

Brandenburg v. Ohio (1969)

Although many people think the ‘clear and present danger’ test is the one still in force throughout the United States with respect to freedom of speech (you can tell based on the incredible number of people who will cite the “fire in a crowded theater” example), that standard has been out of use for nearly 50 years. It was replaced in the milestone 1969 Supreme Court decision in Brandenburg v. Ohio, a case eerily similar to the Whitney case. Brandenburg revolved around an Ohio Ku Klux Klan leader who was convicted under the Ohio version of the criminal syndicalism statute I discussed back in Whitney; in fact, the Ohio and California laws were extremely similar in punishing those who advocated the overthrow of the State and were quite vague in defining who may fall under those rules. This time around, the Supreme Court found in favor of the plaintiff and threw out his conviction, as well as the offending Ohio statute, in a unanimous decision that explicitly overturned Whitney.

This decision created an entirely new legal test, one which still holds today, to determine whether speech or assembly is able to be restricted by the State. The test was at least partially based on the ideas espoused by Justices Brandeis and Holmes in their concurrence to Whitney as well as later decisions, but it goes farther in terms of actually defining what is legal and what is not. In the per curiam opinion of the court (by 7 of 9 Justices, 2 separately concurred), it is written that (emphasis added):

“These later decisions 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…Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.”

Here, we are able to see the clear determination of the Justices that Ohio did not follow the Constitution in creating their criminal syndicalism law, as they did not differentiate “mere advocacy” of lawless action from “incitement to imminent lawless action.” According to the Court, advocacy of lawless action is protected speech, and it does not cross into the realm of the illegal until and unless three specific criteria are met: imminence, intent, and likelihood.

First, I’ll touch on ‘imminence’, as it has been included in the prior tests as well. Unless the speech or assembly being discussed is advocating lawless action right now, it is protected by the First Amendment. The action advocated by the speaker must have the quality of imminence, or there is no clear connection between the speaker’s words and the actor’s actions. Next, I’ll deal with ‘intent’. The Justices here are claiming that a speaker cannot be held liable for their words unless there was a clear ‘intent’ to cause lawless action. The words “where such advocacy is directed to inciting or producing,” directly state that the speaker’s advocacy must specifically be directed to incite or produce lawless action, and if lawless action happens to be a random byproduct of the speaker’s words, she cannot be held liable under the Constitution. Finally, I’ll touch on the last part of the Brandenburg test, ‘likelihood’. Likelihood may be the most critical part of this standard, as it deals with the real-world probability of one’s words actually causing lawless action. If a speaker says something incredibly inflammatory, but it is not likely that her words will cause harmful actions to be carried out, for any reason whatsoever, she cannot be held liable for those words. This portion of the test is important to remember when trying to apply Brandenburg to an actual situation, as speech may have both ‘imminence’ and ‘intent’, but may not have ‘likelihood’. All three are required for the speech to be unprotected under the First Amendment. Clearly, this standard is far more permissive than Schenck, and has been in use since 1969 to protect American civil liberties.

William O Douglas
Justice William O. Douglas    Image Credit: WNYC

Although the Brandenburg test was far more lenient than prior tests and standards, two Justices decided to write separate concurrences going even farther in the protection of First Amendment rights. Justice Hugo Black, in a short concurrence, wrote that he believed the “’clear and present danger’ doctrine should have no place in the interpretation of the First Amendment.” Justice William O. Douglas agreed with the per curiam opinion by the Court, but wrote in his concurrence that he believed firmly in the portion of the First Amendment which stated “Congress shall make no law” (emphasis added) abridging the freedoms of speech or assembly. Justice Douglas agreed with Justice Black in that he “[saw] 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.” He went on to declare that “action is often a method of expression and within the protection of the First Amendment,” a relatively radical position on the Court at the time, but one that has come to see more acceptance since. He continued along these lines by discussing the ‘fire in a crowded theater’ example in light of his ‘actions should be protected speech’ doctrine (emphasis added):

“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. 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.

As one can see, Justice Douglas’s conception of protected speech is vast, as he would have nearly all speech under First Amendment protection, but for actions which directly caused injury or death. This concurrence under Brandenburg would come to be one of the more expansive definitions of free speech advocated by the Court, but the per curiam opinion issued on the case still stands as our current standard for how we legally judge whether certain speech or assembly is protected under the First Amendment.


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