The split grew in the ensuing years, with Holmes and Brandeis remaining lonely dissenters. By 1925, in Gitlow v. New York, the majority no longer claimed to use the clear and present danger test. Instead, the justices in the majority used the so-called bad tendency test to argue that government cannot be expected to measure the danger of every utterance in a “jeweler’s scale” to determine its threat. “A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.” Why wait for the clear and present danger of the roaring flame when the government could easily put out the spark? It should be able to “suppress the threatened danger in its incipiency.”46 In contrast, Holmes and Brandeis continued to embrace the clear and present danger test and made it more protective of speech. According to their new interpretation, only speech that posed a grave threat of “serious evil”—one in which the danger was not only possible but imminent—could be punished by the government.47
clear and present danger test A free speech test that allows government to restrict only speech that poses a clear and present danger of substantive evil; over time, it has become increasingly protective of speech.
bad tendency test The least protective free speech test, which allows government to restrict speech that merely poses a tendency or possibility to do harm (as opposed to a clear and present danger).
The degree to which the Supreme Court is willing to protect speech—or any other part of the Constitution—depends in part upon who is sitting on the Court. From the late 1930s through the 1950s, the membership of the Court was profoundly transformed. Until 1937, corporate lawyers appointed by Republican presidents dominated the Court. But President Franklin Roosevelt eventually had the opportunity to appoint a new majority. His imprint on the Court not only led to the rise of cooperative federalism (discussed in Chapter 3) but also helped to spur the rights revolution of the twentieth century.
The move to incorporate the Bill of Rights began in earnest during the 1930s. And, as new cases came before it, the Supreme Court began to protect free speech rights more vigorously. Nonetheless, it took time to overturn some of the old free speech precedents—especially when the speech in question advocated the violent overthrow of the government. The fear of communism in the 1940s and 1950s led to renewed restrictions on speech. For example, the Supreme Court upheld the convictions of Eugene Dennis and other members of the Communist Party in 1951, even though some critics claimed that they were convicted for mere advocacy that posed no clear and present danger.48
Ironically, a Republican president, Dwight Eisenhower, helped to cement the rights revolution by appointing Chief Justice Earl Warren and other liberals to the Supreme Court in the 1950s. Still, it was not until 1969 in Brandenburg v. Ohio that the Supreme Court finally overturned a precedent that still employed the old bad tendency test in cases advocating violence against the government. The Court now ruled that the government could only punish advocacy that incites or produces “imminent lawless action.”49
Although the Court unanimously rejected the bad tendency test in Brandenburg, new fractures were already emerging. Both Hugo Black and William O. Douglas agreed with the rest of the Court that Brandenburg’s conviction should be overturned, but they argued that the Court did not do enough to protect speech. Both believed that speech is absolutely protected by the Constitution—a view that the majority of the Supreme Court has never embraced. However, Justice Black believed that only pure speech was absolutely protected. He was among those who had read the free speech clause literally to protect only speech—not conduct that may accompany speech (symbolic expression). The fact that Black was unwilling to go as far as some of his non-absolutist colleagues in protecting these other forms of expression is a reminder of the difficulty of determining precisely what the First Amendment protects.
symbolic speech Communication that is neither spoken nor written but is nonetheless accorded free speech protection under the First Amendment.
Symbolic Speech
The category of symbolic speech consists of forms of expression such as signs or symbols instead of pure speech. The Supreme Court first accorded First Amendment protection to symbolic speech in the 1931 case Stromberg v. California. In that case, the Court overturned the conviction of 19-year-old Yetta Stromberg for flying a red flag at a communist youth camp in California. In so doing, it struck down a California law that made it a felony to display a red flag “as a sign, symbol or emblem of opposition to organized government.”50 Since the 1960s, the Supreme Court has applied First Amendment protection to a number of other forms of symbolic expression. For example, it upheld the right of high school students to wear black armbands to class as a form of protest against the Vietnam War in Tinker v. Des Moines Independent Community School District (1969).51 The majority did not recognize an absolute right to wear the armbands, but it claimed that in this case there was no evidence that the armbands had disrupted classroom routine and therefore First Amendment rights should prevail.
Mary Beth Tinker stands with her brother and mother after learning that the Supreme Court upheld her right to wear an armband signaling her opposition to the Vietnam War while at school. Should students’ free speech rights be more limited than other citizens?
Bettmann / Getty Images
The issue of student speech continues to be controversial. In 2002, high school students in Juneau, Alaska, were allowed to miss their regularly scheduled classes in order to watch the Olympic torch pass by at a school-sponsored event across the street. One of the students displayed a banner at the event that read “Bong Hits 4 Jesus.” The school principal seized the banner (school policy prohibited the display of messages promoting drug use at school events) and suspended the student. Were the student’s First Amendment rights violated? A 6–3 majority of the Supreme Court said no in Morse v. Frederick (2007).52 Only one justice in the majority (Clarence Thomas) argued that students have no free speech rights and that Tinker should be overturned. The rest of the majority simply argued that the school’s interest in deterring drug use by students justified its action in this case.
Symbolic speech cases often raise issues of conduct, which consists of actions rather than words. Conduct (such as trespassing, disturbing the peace, or destroying property) may accompany speech and can be punished by the government. However, speech and conduct can be intertwined so closely that it may be difficult to determine where one ends and the other begins. For example, Justice Black dissented in the Tinker case, arguing that students wearing armbands amounted to constitutionally unprotected conduct rather than constitutionally protected speech. His concern focused on the potential disruption to the learning environment.
Another symbolic speech case that raised the issue of conduct is Texas v. Johnson (1989), which involved burning the American flag. The Supreme Court voted 5–4 to overturn the conviction of Gregory Johnson for burning an American flag to protest the policies of President Ronald Reagan.53 Johnson burned the flag outside the 1984 Republican National Convention in Dallas, Texas. President George H.W. Bush responded to the Court’s controversial ruling by calling (unsuccessfully)