Although the intellectual origins of the balancing of interests formula lie in roscoe pound's sociological jurisprudence, the formula was introduced into constitutional law as a means of implementing the Supreme Court's oftrepeated announcement that first amendment rights are not absolute. In determining when infringement on speech may be justified constitutionally, the Court may balance the interest in freedom of speech against the interest that the infringing statute seeks to protect. Thus the Court may conclude that the interests in national security protected by the Smith Act outweigh the interests in speech of those who advocate forcible overthrow of the government, or that the free speech interests of pamphleteers outweigh the interest in clean streets protected by an antilittering ordinance forbidding the distribution of handbills.
The 1950s campaign against alleged subversives brought two interlocking problems to the Supreme Court. The dominant free speech doctrines of the Court were preferred freedoms and the clear and present danger test. Because alleged subversives were exercising preferred speech rights and the government was unprepared to offer evidence that their speech did constitute a present danger of violent overthrow of the government, the Court found it difficult under the existing formulas to uphold government anticommunist action. Because established First Amendment doctrine appeared to be on a collision course with an anticommunist crusade that appeared to enjoy overwhelming popular support, free speech provided the crucial arena for the penultimate crisis of the judicial self-restraint movement. (The ultimate crisis came in brown v. board of education, 1954.) Although the logical implication of that movement suggested that the Court ought never declare an act of Congress unconstitutional as a violation of the bill of rights, the Court was not prepared to go so far. The Justices' dilemma was that they were the inheritors of pro-freedom of speech doctrines but wished to uphold infringements upon speech without openly abdicating their constitutional authority.
The way out of this dilemma was the balancing formula. It allowed the Court to vindicate legislative and executive anticommunist measures case by case without ever flatly announcing that the Court had gone out of the business of enforcing the First Amendment. learned hand's "clear and probable" or "discounting" formula adopted by the Supreme Court in dennis v. united states (1951) was the vital bridge in moving from a clear and present danger test that impels judicial action to a balancing test that veils judicial withdrawal. For Hand's test permits conversion of the danger test from an exception to freedom of speech invoked when speech creates an immediate danger of violent crime to a general formula for outweighing speech claims whenever the goals espoused in the speech are sufficiently antithetical to those of the majority. Justice felix frankfurter's concurrence in Dennis and the majority opinion in barenblatt v. united states (1959) not only made the antispeech potential of the balancing doctrine clear but also exhibited its great potential for absolute judicial deference to coordinate branches. For if constitutional judgments are ultimately a matter of balancing interests, in a democratic society who is the ultimate balancer? Necessarily, it is the Congress in which all the competing interests are represented. Thus the Court deferred to Congress's judgment that the needs of national security outweighed the speech rights of the enemies of that security.
Proponents of the balancing doctrine argue that no one is really willing to give any constitutional right absolute sway and that the act of judging always involves a weighing of competing claims. Certainly when constitutional rights such as free speech and fair trial come into conflict, balancing of the two appears inevitable. The opponents of balancing argue for "principled" versus "ad hoc" or case-by-case balancing. If judges are left free to balance the particular interests in each particular case, they are always free to decide any case for or against the rights claimed by the way they state the interests. Opponents of ad hoc balancing insist that whatever balancing must be done should be done in the course of creating constitutional rules that will then be applied even-handedly in all cases. Thus, if fair trial and free speech values conflict, we may want a rule that upholds the constitutionality of banning prosecutors from pretrial release of confessions, but we do not want the kind of ad hoc balancing in which judges are free to find that in some cases such bans are constitutional and in others they are not.
Balancing has remained a principal doctrine in the freedom of speech area and has spread to other constitutional areas such as privacy. Its capacity as a vehicle for judicial discretion is illustrated by buckley v. valeo (1976), in which the Court used the balancing doctrine to march through the complex campaign finance act, striking down some provisions and upholding others in what was effectively a total legislative redrafting, and by the abortion cases (see roe v. wade, 1973) in which the Court used the balancing doctrine to invest with constitutional authority the "trimester" scheme it invented.
In gibson v. florida legislative investigating committee (1963) the Court held that government might infringe upon a First Amendment right only when it could show a compelling state interest. This formula may be viewed as weighting the balance of interests in favor of constitutional rights, but any government interests can be stated in such a way as to appear compelling. The Court's employment of the balancing test always leaves us uncertain whether any legislative infringement of free speech or other rights, no matter how direct or how open, will be declared unconstitutional, for the Court may always be prepared to find some state interest sufficiently weighty to justify the infringement.
Frantz, Laurent B. 1963 Is the First Amendment Law? California Law Review 51:729–754.
Mendelson, Wallace 1962 On the Meaning of the First Amendment: Absolutes in the Balance. California Law Review 50:821–828.