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The Supreme Court and the Preferred Freedoms Test

Updated on March 28, 2012

At the beginning of the 1900’s, the question of constitutional protection for freedom of speech was a relatively new one for the Supreme Court. Partly because of the lack of precedent, and also because of the turbulence that followed the dawn of the 2oth century, there were movements by state legislatures and the national Congress to regulate speech, suppress dissent, and punish those who espoused and promoted “un-American views.” The war fervor and hysteria of the First World War, followed by the panic of the Red Scare and the Great Depression, created an atmosphere of distrust that pervaded American society. Fear and the threat of subversion seemed to be everywhere. Not even Supreme Court Justices were immune to the trend, as is shown by Chief Justice Edward White’s testy response to a lawyer who argued that the draft did not have widespread support among Americans. “I don’t think your statement has anything to do with legal arguments and should not have been said in this court,” the most important and consequential judge in America at the time had snapped. “ It is a very unpatriotic statement to make.”

The uncertain times were reflected by the uncertainty and fickleness of the positions the Court took on the question of protection of speech. In 1919, it appeared that Justice Holmes had placed the burden of demonstrating a clear and present danger in order to justify any suppression on the government. Eight months later, the Abrams ruling turned the conventional wisdom on its head, establishing the bad tendency test that gave the government much greater flexibility in regulating speech. And in 1931, the Court would advance a new constitutional test, the preferred freedoms doctrine.

By the 1930’s, much of the fear that had driven the support for censorship had abated. The first sign that the Court was willing to reconsider its willingness to give question of protection another look came in the 1931 case Stromberg v. California. Yetta Stromberg had been a nineteen-year-old employee at a summer camp, where he made it a habit to introduce her younger campers to Marxist ideology. She would sometimes raise the red banner and recite the worker’s pledge of allegiance, an act that eventually got her arrested under a California statute that banned the public use of a flag or red banner to represent opposition to organized government. The Supreme Court threw out her conviction, ruling that the law in California was too broad, and would affect those advocating peacefully. The vagueness of the law did not meet the demands for protection guaranteed by the 1st Amendment.

Advocates for expanded civil liberties won another victory in 1937 with DeJonge v. Oregon. DeJonge was a member of the Communist Party in Oregon, and he had distributed leaflets to organize a meeting that drew hundreds of people to his home to protest recent raids by the police. Though the meeting was held in a peaceful and orderly manner, the police raided his home and made arrests, arresting DeJonge for having violated the criminal syndicalism law that banned any organization of the Communist Party in the state. The Court unanimously overturned DeJonge’s conviction, determining that the criminal syndicalism law was in conflict with the 1st Amendment. Chief Justice Evan Hughes in his majority opinion used language that was reminiscent of the clear and present danger test, noting that “peaceful assembly for lawful discussion cannot be made a crime.”

Strangely, the most dramatic shift in the ideology of the Court in the area of free speech was marked by a case centered on economic issues rather than civil liberties. In United States v. Carolene Products (1938) the Court weighed the constitutionality of a federal ban on a brand of milk. Justice Harlan Stone’s footnote in the opinion asserted that when any law has the potential to be in conflict with any of the first ten Amendments (the preferred freedoms) the law must not be assumed to be constitutional, and Justices had no more important and sacred duty on the Court than to protect individual liberties. This constitutional interpretation, known as preferred freedoms, would be embraced in the 1939 case Schneider v. State of New Jersey. In this case, the Court ruled that a law restricting public distribution of pamphlets and literature for the purpose of keeping streets clean and free of literature was in conflict with the 1st Amendment. Writing for the majority, Justice Owen Roberts ruled that “the purpose to keep the streets clean is insufficient to justify an ordinance which prohibit a person rightfully on a public street from handing literature to one willing to receive it.” This decision reflected the reality that justices were beginning to turn to the preferred freedoms test. For decades thereafter, the Court would be primarily a safeguard of individual rights, and government intrusion and restriction on speech would need to be seen as very urgent and justified to hold in Court.


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