First Amendment Balancing

First Amendment Balancing Notwithstanding the specific guarantees of the First Amendment and, by implication, that of the Fourteenth, the quintet of rights enumerated in its language are not regarded as absolute, despite Justice Hugo Black's ardent advocacy of such an approach (See First Amendment Absolutism). Accordingly, a “balancing” between individual and societal rights seems a logical compromise between those who would brook no governmental regulation of First Amendment rights, whatsoever, and those who readily support stern, sometimes draconian, measures on the grounds of national security or law and order. In general, the judicial branch has endeavored to draw a viable line between protected constitutional rights and permissible government regulation.

Unless one rejects utterly any regulatory governmental authority, First Amendment balancing, by whatever name, is an obvious necessity. The difficulty, however, is in determining a constitutionally and legally viable line, particularly since many First Amendment claims are inherently controversial and polycentric. To note but a few recurring ones: Where does, where should, the judiciary draw the line between assertions of a right to engage in free exercise of religion, even if that would extend to the refusal to provide medical aid to minor children, and a perceived governmental responsibility to protect their lives (Commonwealth of Pennsylvania v. Cornelius, 1956)? Or, in the always contentious realm of the separation of church and state (the Establishment Clause), may Louisiana require the teaching of “creationism” to balance that of “evolution” in its public school curriculum (Edwards v. Aguillard, 1987; see Evolution and Creation Science)? Or, to what extent, if any at all, may a trial judge impose “gag” orders against the press, sharply restricting pretrial coverage (Nebraska Press Association v. Stuart, 1976; see Pretrial Publicity and the Gag Rule)? Or, may Georgia forbid the printing or publication of the name of a rape victim, whose parents invoked privacy considerations where the name was inadvertently left in the public record (Cox Broadcasting Corp. v. Cohn, 1975)? The judiciary “balanced” personal and governmental rights and obligations in each of the above cases—and in each, except the last, it sided with the individual claimants as against asserted governmental prerogatives.

To an “absolutist” such as Justice Black, “balancing” is anathema: it flies into the face of the literal commands of the amendment, as he always saw it. For him, “balancing,” as he wrote in A Constitutional Faith (1968), three years prior to his death, “should be used only where a law is aimed at conduct and indirectly affects speech; a law directly aimed at curtailing speech and political persuasion can, in my opinion, never be saved through a balancing process” (p. 61). Arguably, he met the issue most squarely with his dissenting opinion in Barenblatt v. United States (1959), the legislative investigation case at the height of the cold war. A Vassar College instructor, Lloyd Barenblatt, had refused to answer certain questions put to him by the House Un‐American Activities Committee. For his refusal, he was convicted, fined, and sentenced to six months in prison. Speaking for the 5‐to‐4 Court majority, Justice John M. Harlan upheld the committee's authority against First Amendment claims of freedom of expression and association, concluding that “the balance between the individual and governmental interests here at stake must be struck in favor of the latter” (p. 134). (See Assembly and Association, Citizenship, Freedom of.) In a bitter dissenting opinion, Justice Black argued that to apply the Court's balancing test under the circumstances at issue is to read the First Amendment to say: “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” (p. 143).

Yet there is little doubt that the judicial role encompasses the need to continue to engage in balancing. To what extent the latter tilts toward a “liberal” or “conservative” construction of the First Amendment often depends upon value judgments.

See also Speech and the Press.

Bibliography

Henry J. Abraham , Freedom and the Court, 5th ed. (1988).

Henry J. Abraham