Two-Level Theory

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In an important 1960 article, Harry Kalven, Jr., coined the phrase "two-level theory." As he described it, first amendment methodology classified speech at two levels. Some speech was so unworthy as to be beneath First Amendment protection: no First Amendment review was necessary. Thus the Court in chaplinsky v. new hampshire (1942) had referred to "certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words." At the second level, speech of constitutional value was protected unless it presented a clear and present danger of a substantive evil.

In a subsequent article Kalven observed that in new york times v. sullivan (1964) neither the two-level approach nor the clear and present danger test was an organizing strategy or guiding methodology. He expressed the hope that the Sullivan Court's unwillingness to employ the two-level theory presaged the theory's demise along with the clear and present danger test. Kalven's hopes have been only partially realized. Perhaps partly as a result of his persuasive efforts, the Court has been willing to scrutinize state justifications for regulating some types of speech previously thought to raise no constitutional problem. Chaplinsky 's off-hand assumption that each class of speech in its litany raises no constitutional problem is no longer credible. Nonetheless, the Court continues to be impressed by Chaplinsky 's famous obiter dictum that speech beneath the protection of the First Amendment occupies that status because its slight contribution to truth is outweighed by the state interests in order and morality.

Kalven's hope for the complete repudiation of the clear and present danger doctrine also remains unfulfilled. A variation of the doctrine occupies a secure doctrinal place in the context of incitement to unlawful conduct, and the dennis v. united states (1951) version of the test has been employed by the Court in other contexts, as in Landmark Communications, Inc. v. Virginia (1978) and nebraska press association v. stuart (1976).

If doctrine were described today in terms of levels, many levels would be necessary. At one level, there is the question whether a First Amendment problem is presented: an effort to communicate a message by assassination presumably raises no First Amendment problem. If cognizable First Amendment values are present, there remains the question whether any legal protection is appropriate: advocacy of illegal action often is unprotected despite the existence of cognizable First Amendment interests. If some protection is appropriate, further questions remain: what protection in what contexts, at what times, in what places, and concerning what modes of expression? A multitude of doctrinal tests now govern a multitude of contexts. Harry Kalven would appreciate the Court's sensitivity to the vicissitudes of human conduct, but likely would regret the absence of an overall vision.

Steven Shiffrin


Kalven, Harry, Jr. 1960 The Metaphysics of the Law of Obscenity. Supreme Court Review 1960:1–45.

——1964 The New York Times Case: A Note on "The Central Meaning of the First Amendment." Supreme Court Review 1964:191–221.