JUDICIAL DECISION MAKING

I. Judicial Models

A. Rigid labels are not very useful.
"Conservative/Liberal" is confusing, especially in 1st Amendment cases because of the strict vs. loose constructionist paradox.

B. However, intellectual trends do emerge over time.

1. Individual Liberties emphasis (Brandeis, Warren, Fortas, Thurgood Marshall)
2. Freedom of Expression as a Preferred Individual Liberty
   (Douglas, Black, Brennan)
3. Majority Rights emphasis (McReynolds, Jackson, White, Burger, Rehnquist)
4. Balancing of Interests emphasis (Frankfurter)
5. States' Rights emphasis (Harlan, Jr.)

JUDICIAL MODELS AND INTELLECTUAL TRENDS GIVE RISE TO TESTS AND DOCTRINES

II. JUDICIAL DOCTRINES

A. How a doctrine is developed

1. Written opinions become the Court record for a case.

• All positions and concepts argued in an opinion do not automatically become doctrines.
• Majority opinions establish rules for lower courts to follow.

2. When a majority of the justices accept a particular viewpoint or concept as an appropriate guide for contextual constitutional interpretation, that viewpoint is called a test or doctrine.

• A doctrine may develop from several majority opinions over time, OR it may emerge in a majority opinion after years as a part of a dissenting opinion.
• A doctrine is used as long as it is useful as a guide or as long as a majority supports it. (death or retirement)
• A doctrine is contextual. It may be specific to a particular amendment.
• Doctrines are not exclusive. Many overlap and subsume other tests.
• Doctrines are constantly being modified and clarified.

B. The Bad Tendency Test

1. First clear test to be used by the USSC in interpreting the 1st Amendment.

2. The test was implied in Masses Publishing Co. v. Patten 244 Fed 535 (SDNY, 1917) and in Schenck v. U.S. (1919), but was first officially announced by the USSC in Abrams v. U.S. (1919).

3. Thesis: Government can suppress expression that is damaging to interests that the government perceives it has a right to protect.

• The test is based on common law traditions. It is a product of the viewpoint that any challenge to the government can be interpreted as a bad tendency.

4. Conclusions:

a. Words need only have a tendency to cause unrest in order to warrant prohibition.
b. Even if the expressions does not result in harm, the fact that it might have, makes the words punishable.
c. This test gives states the power to prosecute possible conspiracies to violate the law, even if the attempt fails.

C. The Clear and Present Danger Doctrine

1. First announced by Oliver Wendell Holmes in Schenck (1919), but not accepted by Court until 1937 in the case of Herndon v. Lowry (301 US 242).

2. Thesis: In order to abridge expression, the government must assume the burden of showing that the danger is so apparent and so imminent, that serious damage will be done if the expression is not abridged immediately.

• Clear & Present Danger attempts to steer a middle course between total suppression and total liberty.
• It is considered by some to be a very tolerant test.
  
  

"The term 'clear' embodies the idea that the proof of danger must be strong, not speculative; that the danger must be a specific, not general one; and that there is some presumption in favor of speech and against restriction. The term 'present' means immediate, imminent, not remote; the rationale is, not only that the requirement of immediacy of danger arbitrarily protects more speech, but that the more remote the danger the more uncertainty there is about its occurrence and therefore the less justification there is for suppression of the speech. As to 'danger,' the word has emotional overtones not associated with a weaker word, such as 'threat' or 'likelihood'; this emotional content works toward greater protection of speech."
(Emerson, The System of Freedom of Expression, p. 325)

D. The Gravity of Evil test

1. Established in 1951 in Dennis v. U.S., as a modification of the Clear and Present Danger test.

2. Thesis: If the perceived danger of allowing the expression is great, then it need only be probable, not present, in order to justify suppression.

• Chief Justice Vinson's plurality opinion adopted Judge Learned Hand's formula: "In each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."
• In the time of fear of communism, terms such as "Evil" and "danger" became more important than "clear" and "present."

3. This test was used by the USSC only in the 1950s.

E. The Incitement Test

1. Established in 1969 in Brandenburg v. Ohio, as a modification of the Clear & Present Danger test.

2. Thesis: States may not 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. (A danger is present only when it is likely to be carried out.)

• This doctrine is still used today. (1993)

F. Reasonable Likelihood Test

1. Began in 1966 in Sheppard v. Maxwell; announced in 1976 in Nebraska Press Assoc. v. Stuart. This is a clarification of the Clear and Present Danger doctrine as applied to the press.

2. Thesis: Even if a reasonable likelihood of a clear and present danger exists, prior restraint on the press is not an acceptable means of eliminating the danger.

3. This test has been applied only in cases dealing with free press and the administration of justice (press coverage of sensational trials).

G. The Ad Hoc Balancing Test

1. Date of establishment unknown. It is used sporadically.

2. Thesis: Some social goals may be more important than others, hence, in each case and in context, justices should weigh the value of expression against the social goal preserved through limiting that expression.

3. The principal proponent of this test was Justice Felix Frankfurter, who believed that advocating violence, expressing obscenity, or using defamatory language deserved less protection than other forms of expression, and could be abridged when more important social goals were advanced through abridgment.

4. The major drawback to this test is the lack of standards that indicate the relative importance of competing social goals.

Major tests used by the USSC in National Security

1. Bad Tendency test

• Government can suppress expression that is damaging to interests that the government perceives it has a right to protect. A product of the common law.

2. Clear and Present Danger doctrine

• In order to abridge expression, the government must assume the burden of showing that the danger is so apparent and so imminent that serious damage will be done if the expression is not abridged immediately.

3. Gravity of Evil test

• If the perceived danger of allowing the expression is great, then it need only be probable--not present--in order to justify suppression.

4. Incitement test

• States may not 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. (A danger is present only when it is likely to be carried out.)

5. Ad hoc balancing test

• Some social goals may be more important than others. Hence, in each case and in context, justices should weigh the value of expression against the social goal preserved through limiting that expression.