University of Chicago Legal Forum

Volume 2020 12/01/2020 Article 10

2020

Free Speech Overrides

Frederick Schauer

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 Free Speech Overrides
Frederick Schauer†

I. INTRODUCTION

The notion of an “absolute” First Amendment has been around for

generations.1 First Amendment absolutism was championed, although
not with exactly that term, by Justices Hugo Black and William O.
Douglas.2 And numerous commentators, perhaps Alexander Meiklejohn
most prominently,3 have joined the absolutist parade.4
Talk of an absolute First Amendment, however, is just that—talk.
Even putting aside the obvious and by-now familiar point that the First
Amendment’s Free Speech Clause does not even come close to covering
all speech,5 the protection the Free Speech Clause offers even to

†
Frederick Schauer is David and Mary Harrison Distinguished Professor of Law at the Uni-
versity of Virginia. This Essay was prepared for the University of Chicago Law School’s Conference
on What’s the Harm? The Future of the First Amendment, held on October 24, 2019.
1
See NORMAN DORSEN ET AL., EMERSON, HABER, AND DORSEN’S POLITICAL AND CIVIL RIGHTS
IN THE UNITED STATES 45 (4th ed. 1976).
2
See, e.g., Brandenburg v. Ohio, 395 U.S. 444, 456–57 (1969) (Douglas, J., concurring); N.Y.
Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (Black, J., concurring); Konigsberg v. State Bar of
Cal., 366 U.S. 36, 61 (1961) (Black, J., dissenting); Barenblatt v. United States, 360 U.S. 109, 140–
44 (1959) (Black, J., dissenting); Hugo Black, The Bill of Rights, 35 N.Y.U. L. REV. 865 (1960);
Hugo L. Black & Edmond Cahn, Justice Black and First Amendment “Absolutes,” A Public Inter-
view, 37 NYU L. REV. 549 (1962); Lucas A. Powe, Jr., Evolution to Absolutism: Justice Douglas and
the First Amendment, 74 COLUM. L. REV. 371 (1974). In N.Y. Times Co. v. United States, 403 U.S.
713 (1971), Solicitor General Erwin Griswold, apparently addressing Justice Douglas, famously
argued as follows: “You say that ‘no law’ means ‘no law’ and that should be obvious. I can only say,
Mr. Justice, that to me it is equally obvious that ‘no law’ does not mean ‘no law,’ and I would seek
to persuade the Court that that is true.” Transcript of Oral Argument in Times and Post Cases
Before the Supreme Court, N.Y. TIMES, Jun. 27, 1971, at 24. Justice Black was of the opinion,
however, that Griswold’s statement was addressed to him. See GERALD T. DUNNE, HUGO BLACK
AND THE JUDICIAL REVOLUTION 431 (1977).
3
Alexander Meiklejohn, The First Amendment is an Absolute, 1961 SUP. CT. REV. 245 (1961).
4
See, e.g., C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 125–93 (1992); Zach-
ary S. Price, Our Imperiled Absolutist First Amendment, 20 U. PA. J. CON. L. 817 (2018); Solveig
Singer, Reviving First Amendment Absolutism for the Internet, 3 TEX. REV. L. & POL. 279 (1999).
The idea persists. See Tony Woodlief, Free Speech Absolutism Killed Free Speech, WALL ST. J., Aug.
31, 2020, at A17.
5
A great deal of communication, linguistic and otherwise, simply does not implicate the First
Amendment at all. In my preferred terminology, such communication (much of which is “speech”
in ordinary English) is not covered by the First Amendment, which is to be distinguished from

255
256 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2020

communications within its scope—the communications that the First

Amendment does cover—is not absolute now, has never been absolute
in the past, and will not be absolute in the future. Rather, the protec-
tions of freedom of speech and freedom of the press—like the protec-
tions, prohibitions, and guarantees of other constitutional rights—are
subject to being overridden by other considerations if those other con-
siderations present themselves with sufficient weight and immediacy.
In the context of equal protection, due process, and the free exercise of
religion, for example, the threshold for overriding under the so-called
strict scrutiny approach is typically the familiar “compelling interest”
standard.6 Much the same applies in many contexts to speech covered
by the First Amendment,7 and has ever since Oliver Wendell Holmes
gave us the idea of “clear and present danger.”8
Recent events, with the one in my own city of Charlottesville being
tragically the most notorious,9 make it important to think carefully
about the kinds of dangers—harms—that can override what are un-
doubtedly rights under the First Amendment. At least as a matter of
settled American free speech doctrine, for example, neo-Nazis,10

those communications that are covered but wind up not being protected after the application of
some First Amendment–inspired test. See Frederick Schauer, Out of Range: On Patently Uncov-
ered Speech, 128 HARV. L. REV. F. 346 (2015); Frederick Schauer, The Boundaries of the First
Amendment: A Preliminary Exploration of Constitutional Salience, 117 HARV. L. REV. 1765 (2004);
Frederick Schauer, Every Possible Use of Language? in THE FREE SPEECH CENTURY 33 (Geoffrey
R. Stone & Lee C. Bollinger eds., 2019); Amanda Shanor, First Amendment Coverage, 93 NYU. L.
REV. 318 (2018).
6
See, e.g., Roe v. Wade, 410 U.S. 113, 155 (1973) (holding that the government must meet
the “compelling interest” standard when fundamental rights under the due process clause are in-
fringed); Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (holding that race–based distinctions are
permissible under the equal protection clause only if they serve a compelling governmental inter-
est); Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 237 (1995) (same); Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (holding that restrictions targeted at
religious practices are permissible only if narrowly tailored to serve a compelling governmental
interest).
7
See, e.g., Riley v. Nat’l Fed’n of Blind, Inc., 487 U.S. 781, 798 (1988) (restrictions on chari-
table solicitations); Williams–Yulee v. Fla. Bar, 575 U.S. 433, 445 (2015) (restrictions on speech of
candidates in judicial elections); Sable Commc’n of Cal., Inc. v. FCC, 492 U.S. 115, 125 (1989)
(restrictions on allegedly indecent speech); Reed v. Town of Gilbert, 576 U.S. 155, 162–63 (2015)
(content–based restrictions generally). Slightly more complex is New York v. Ferber, 458 U.S. 747,
761 (1982), in which the Supreme Court used the language of “compelling” interest to justify re-
strictions on non–obscene child pornography, and thus announced the general permissibility of
such restrictions, but did not require a showing of a compelling interest in particular applications.
8
See Schenck v. United States, 249 U.S. 47, 52 (1919).
9
For accounts of the events arising out of the Unite the Right rally in August 2017, see
HUNTON & WILLIAMS LLP, FINAL REPORT: INDEPENDENT REVIEW OF THE 2017 PROTEST EVENTS IN
CHARLOTTESVILLE, VIRGINIA (2017), https://www.huntonak.com/en/news/final-report-independent
-review-of-the-2017-protest-events-in-charlottesville-virginia.html [perma.cc/3787-LYKV]; see
also Complaint, Sines v. Kessler, 324 F. Supp. 3d 765 (W.D. Va. 2018) (No. 3:17–CV–00072); Kess-
ler v. City of Charlottesville, No. 3:17CV00056, 2017 WL 34754071 (W.D. Va. 2017); Frederick
Schauer, In the Shadow of the First Amendment, in CHARLOTTESVILLE 2017: THE LEGACY OF RACE
AND INEQUITY 65 (Louis P. Nelson & Claudrena Harold eds., 2018).
10
Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978).
255] FREE SPEECH OVERRIDES 257

Klansmen,11 white supremacists,12 homophobes,13 puppy torturers,14

and endorsers of sexual violence,15 among others, have a right to pub-
lish their views and voice them in the public forum. Typically, as these
examples illustrate, attempts to restrict such speakers have been met
with the usually successful response that the speakers can only be re-
stricted if the state can show that the speech would produce a harm of
the greatest magnitude and immediacy, and that the harm could not be
alleviated by any approach less restrictive of a speaker’s First Amend-
ment rights.16 Importantly, governments have almost universally been
unable to establish such a showing.17 Accordingly, it seems appropriate
in light of recent events, especially those involving hostile audiences,18
to survey the existing doctrine and offer some guideposts as to what it
would take actually to override the First Amendment in areas of its
central coverage.
Yet if the rights to freedom of speech and freedom of the press can
on occasion be overridden,19 then it follows that the possessors of such
rights may sometimes wind up losing what the rights purport to give
them. This in itself is hardly remarkable, as this conclusion flows logi-
cally from the nonabsolutism of the underlying right. But what is more
noteworthy is that those whose First Amendment rights are overridden,
even when properly so, wind up losing something—they lose what the
First Amendment guarantees them. Yet despite having lost the oppor-
tunity to exercise their First Amendment rights, they still receive noth-
ing to acknowledge their loss, and certainly nothing to compensate
them for that loss.

11
Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992).
12
See HUNTON & WILLIAMS LLP, supra note 9.
13
Snyder v. Phelps, 562 U.S. 443 (2011).
14
United States v. Stevens, 559 U.S. 460 (2010).
15
Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff’d, 475 U.S. 1001 (1986).
16
See Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 799 (2011) (holding that restrictions on
content of violent interactive videogames could be restricted only if the particular restriction was
“necessary” to serve a “compelling interest”).
17
Thus, each of the cases cited in supra notes 10, 11, 13, 14, 15, and 16 was one in which the
government’s justification for its attempted restriction was invalidated. For recent examples, see
Iancu v. Brunetti, 139 S. Ct. 2294 (2019); Matal v. Tam, 137 S. Ct. 1744 (2017); Reed v. Town of
Gilbert, 576 U.S. 155 (2015).
18
See Frederick Schauer, Costs and Challenges of the Hostile Audience, 94 NOTRE DAME L.
REV. 1671 (2019). For accounts of recent events, many on or near university campuses, see Jamal
Greene, Constitutional Moral Hazard and Campus Speech, 61 WM. & MARY L. REV. 223 (2019); JD
Hsin, Defending the Public’s Forum: Theory and Doctrine in the Problem of Provocative Speech, 69
HASTINGS L. J. 1099 (2018); Timothy E. D. Horley, Rethinking the Heckler’s Veto after Char-
lottesville, 104 VA. L. REV. ONLINE 8 (2018).
19
See Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) (using the exact language of “over-
ride”).
258 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2020

Although such non-compensation or other redress for the loss of the

ability to exercise a constitutional right seems so familiar as to fail to
even generate concern, it does stand in contrast to how we treat those
who have given up their property rights for the public good. In those
instances, the so-called Takings Clause of the Fifth Amendment, ap-
plied to the states through the Fourteenth Amendment,20 provides that
those whose property is taken by eminent domain, even if the taking is
justified, are nevertheless entitled to “just compensation.”21 But if those
whose property rights are taken for the public good are entitled to com-
pensation for their loss, then why are not those whose First Amendment
rights are similarly taken (or restricted) for the public good also entitled
to compensation? That is a puzzle, and a secondary goal of this Article—
although one that emerges directly from the phenomenon of the over-
ride—is to present and examine this puzzle.

II. IT ALL STARTED WITH HOLMES

When Oliver Wendell Holmes first used the now-familiar phrase,

“clear and present danger,”22 it was for him not a carefully considered
choice of words at all. In Schenck v. United States,23 and then in Debs v.
United States24 and Frohwerk v. United States25 only months later,
Holmes treated the prosecutions as largely controlled by existing prin-
ciples of criminal law. As in the criminal law, the defendant’s intent was
crucial, but Holmes, having found that Charles Schenck, Eugene Debs,
and Jacob Frohwerk all possessed the necessary intent to sustain their
convictions,26 did not treat the First Amendment claims of all three of
these defendants as worthy of serious consideration. So when Holmes
mentioned that speech could be restricted when a clear and present
danger existed, it was, at the time, little more than an aside.27 That
Holmes wrote for the Court in upholding all three convictions

20
See Chi., B. & Q. R. Co. v. City of Chicago, 166 U.S. 226 (1897); Missouri Pac. Ry. Co. v.
Nebraska, 164 U.S. 403 (1896).
21
U.S. CONST. amend. V.
22
Schenck v. United States, 249 U.S. 47, 52 (1919).
23
249 U.S. 47 (1919).
24
249 U.S. 211 (1919).
25
249 U.S. 204 (1919); see also Schauer, supra note 9.
26
For contrasting views on the relevance of speaker’s intent under the First Amendment, see
LARRY ALEXANDER, IS THERE A RIGHT TO FREEDOM OF EXPRESSION? 76 (2005); Larry Alexander,
Free Speech and Speaker’s Intent, 12 CONST. COMM. 24 (1995); Leslie Kendrick, Free Speech and
Guilty Minds, 114 COLUM. L. REV. 1255 (2014); Leslie Kendrick, Speech, Intent, and the Chilling
Effect, 54 WM. & MARY L. REV. 1633 (2013).
27
See THOMAS HEALY, THE GREAT DISSENT: HOW OLIVER WENDELL HOLMES CHANGED HIS
MIND—AND CHANGED THE HISTORY OF FREE SPEECH IN AMERICA 102–03 (2013). Indeed, the ac-
companying “shouting fire in a crowded theater” example was not even original with Holmes, hav-
ing first appeared in the prosecutor’s closing argument in the Debs trial. Id. at 91.
255] FREE SPEECH OVERRIDES 259

underscores that he did not imagine that the idea of a clear and present
danger imposed very much of an impediment to a conviction that was
permissible under standard criminal law principles. Indeed, the fact
that a variant of clear and present danger appears in Holmes’s subse-
quent change of heart in Abrams v. United States28 only in the disjunc-
tive29 further emphasizes that at the beginning of the modern First
Amendment the idea of clear and present danger did not do very much
work.
Given the results in Schenck, Debs, and Abrams, the idea of a clear
and present danger appears as a highly permissive standard.30 In the-
ory, it need not be so. After all, under the “rational basis” test, the test
that is generally applicable to the evaluation of government restrictions
on conduct not covered by the First Amendment,31 the state is permitted
to take actions against dangers that are neither clear nor present. Ra-
tional basis review allows the state to speculate with respect to dangers
that are not clear and to regulate for future dangers that are not pre-
sent. Few would argue these days, for example, that government may
not regulate the sale of electronic cigarettes or foods made with genet-
ically manufactured organisms (GMOs), even though the alleged dan-
gers of such products, being contested and speculative, are certainly not
clear.32 Even more obviously, the government plainly may take restric-
tive actions to combat the dangers of climate change, even though the
clear dangers of climate change are not “present” under any ordinary
understanding of that word.33 As a result, and contrary to the actual
results in the 1919 cases, it seems now safe to conclude, as the Supreme
Court and other courts concluded in the 1960s,34 that the idea of a clear

28
250 U.S. 616, 624 (1919) (Holmes, J., dissenting).
29
Id. at 629 (“Even if I am technically wrong and enough can be squeezed from these poor and
puny anonymities to turn the color of legal litmus paper . . . .”).
30
See RICHARD POLENBERG, FIGHTING FAITHS: THE ABRAMS CASE, THE SUPREME COURT, AND
FREE SPEECH 212–18 (1987).
31
See United States v. Carolene Prod. Co., 304 U.S. 144, 152–53 (1938); see also Ferguson v.
Skrupa 372 U.S. 726 (1963); Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955).
32
For information on GMOs, see Barbara de Santis et al., Case Studies on Genetically Modi-
fied Organisms (GMOs): Potential Risk Scenarios and Associated Health Indicators, 117 FOOD &
CHEMICAL TOXICOLOGY 36 (2018). For information on electronic cigarettes, see Jennifer Couzin–
Frankel, How Safe is Vaping? New Human Studies Assess Chronic Harm to Heart and Lungs,
Science Magazine, SCIENCE (Nov. 26, 2019), https://www.sciencemag.org/news/2019/11/how-safe-
vaping-new-human-studies-assess-chronic-harm-heart-and-lungs [perma.cc/6MAP-NWET].
33
On the tolerance of the rational basis test for speculation, see Heller v. Roe, 509 U.S. 312,
320 (1993); Maria Ponomarenko, Administrative Rationality Review, 104 VA. L. REV. 1399, 1399
(2018); John A. Robertson, Science Disputes in Abortion Law, 93 TEX. L. REV. 1849, 1853 (2015).
On the distinction between First Amendment standards and rationality review, see Felix T. Wu,
The Commercial Difference, 58 WM. & MARY L. REV. 2005, 2036 n.145 (2017).
34
Noto v. United States, 367 U.S. 290, 297–98 (1961); Scales v. United States, 367 U.S. 203,
229 (1961); Yates v. United States, 354 U.S. 298, 316 (1957); United States v. Spock, 416 F.2d 165
(1st Cir. 1969).
260 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2020

and present danger is such as to require for the regulation of speech

covered by the First Amendment a showing of gravity, immediacy, and
specificity substantially greater than the showing sufficient to justify
the regulation of non-covered behavior.35 It is far too late in the doctri-
nal day to believe that speech is protected because it is harmless, and
thus that any harm-producing speech loses its protection for that rea-
son.36 Rather, even harmful speech is routinely protected, and the im-
port of the clear and present danger idea is that the harms must be
especially great and especially immediate for the protection typically
available for harmful speech to be forfeited.

III. CLEAR AND PRESENT DANGER REVISED—AND NOT

In Schenck, “clear and present danger” may have been little more
than the relatively casual observation that the First Amendment was
not absolute, but it soon became an actual test or criterion against
which restrictions on covered speech were to be measured. Initially, the
view that “clear and present danger” was a constitutional test rather
than merely an observation emerged in a series of dissents. First was
the dissenting opinion of Justice Brandeis, joined by Justice Holmes, in
Schaefer v. United States,37 explicitly referring to “clear and present
danger,” in objecting to the majority’s affirmation of the conviction of a
wartime dissenter.38 And Brandeis relied on the then-recent article by
Zechariah Chafee for the proposition that clear and present danger
should properly be understood as the test for the constitutionality of a
restriction on advocacy, even in times of war.39 To much the same effect,
shortly thereafter was Pierce v. United States,40 where Brandeis, again
joined by Holmes, once more used explicit “clear and present danger”
language41 in departing from the majority’s conclusion that Pierce’s
pamphlets were intended to produce military insubordination as their
“proximate result”42 and that a jury could find that those pamphlets
could have a “material influence”43 on such insubordination. And in the
same year, Brandeis still again dissented, here in Gilbert v.

35
See Frederick Schauer, Is It Better to Be Safe Than Sorry? Free Speech and the Precaution-
ary Principle, 36 PEPPERDINE L. REV. 301 (2009).
36
See Frederick Schauer, Harm(s) and the First Amendment, 2011 SUP. CT. REV. 81 (2011).
37
251 U.S. 466 (1920).
38
Id. at 483, 486 (Brandeis, J., dissenting).
39
Zechariah Chafee, Freedom of Speech in War Time, 32 HARV. L. REV. 932, 963 (1919). On
Chafee’s connections with Hand and Holmes at the time, see STEPHEN BUDIANSKY, OLIVER
WENDELL HOLMES: A LIFE IN WAR, LAW, AND IDEAS 369, 385, 393 (2019).
40
252 U.S. 239 (1920).
41
Id. at 255, 271, 272 (Brandeis, J., dissenting).
42
Id. at 250.
43
Id.
255] FREE SPEECH OVERRIDES 261

Minnesota,44 continuing to use “clear and present danger” as the de-

scription of the test from which he believed that the majority had de-
parted.45 Brandeis reiterated that position several years later in his en-
during “concurring” opinion in Whitney v. California.46 In Whitney,
Brandeis seemed to follow Holmes’s decision in Gitlow v. New York,47
where Holmes referred to “clear and present danger” in no uncertain
terms as the “criterion” and “test” for all restrictions on advocacy,48 not
only those in which a speaker was prosecuted under a general statute
not restricted to speech, as in Schenck, but also those in which the leg-
islature had made a finding of the dangers resulting from speech of a
certain kind.49
The post-Schenck version of the clear and present danger standard
appeared to have been discarded when a Supreme Court plurality in
Dennis v. United States50 relied on the “gravity of the evil discounted by
its improbability” standard employed by Judge Learned Hand in the
decision below.51 However, it in fact persisted after Dennis: Something
very close to a strong version of the clear and present danger idea, ar-
guably strengthened even further, was to be found in Yates v. United
States52 in 1957, and then in Scales v. United States53 and Noto v.
United States,54 both decided in 1961. And although Yates, Scales, and
Noto were undeniably more speech-protective than Dennis and Gitlow,
the standard they embodied was still not absolute and the idea that
behavior covered by the First Amendment could still be regulated, and
thus that First Amendment rights could be overridden under some cir-
cumstances, still persisted.

44
254 U.S. 325 (1920).
45
Id. at 335, 336, 338 (Brandeis, J., dissenting).
46
274 U.S. 357, 374–77 (1927) (Brandeis, J., concurring). For more on the increasing diver-
gence between Holmes and Brandeis on the exact limits of freedom of speech and thus on the
precise understanding of “clear and present danger,” see POLENBERG, supra note 30, at 265–71.
47
268 U.S. 652 (1926).
48
Id. at 672 (Holmes, J., dissenting).
49
See id. at 673. Gitlow’s relaxed, so–called “bad tendency test” was based, in part, on the
view that clear and present danger was the appropriate test for evaluating the prosecution of
speech under a statute not aimed directly or specifically at speech as such, but that a test of less
stringency was appropriate where the legislature, in targeting speech of a certain kind or with a
certain effect, had already made a determination about the danger of the speech to which the
statute was addressed. See Hans A. Linde, “Clear and Present Danger” Reexamined: Dissonance
in the Brandenburg Concerto, 22 STAN. L. REV. 1163 (1970); Yosal Rogat, Mr. Justice Holmes: Some
Modern Views—The Judge as Spectator, 31 U. CHI. L. REV. 213 (1964).
50
341 U.S. 494 (1951).
51
United States v. Dennis, 183 F.2d 201 (2d Cir. 1950).
52
354 U.S. 298 (1957).
53
367 U.S. 203 (1961).
54
367 U.S. 290 (1961).
262 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2020

In a narrow sense, Schenck is no longer good law. The specific con-

text in which the clear and present danger standard first arose in
Schenck—the advocacy of unlawful conduct—was and remains super-
seded by the test that emerged from Brandenburg v. Ohio.55 The Bran-
denburg standard, arguably incorporating some version of the require-
ment of explicit incitement first introduced by Judge Hand a half-
century earlier in Masses Publishing Co. v. Patten56 and still retaining
(and strengthening) the evidentiary (“clear”) and temporal (“present”)
dimensions of the clear and present danger idea,57 superseded Schenck
and remains the applicable rule today.58 Indeed, to the extent that lower
courts have tended to apply Brandenburg to civil cases involving negli-
gent causation of unlawful acts,59 the case has emerged as an even
broader and stronger protection of speech bearing a relationship to sub-
sequent acts of illegality. Even so, however, the test is not absolute, and
it remains possible, at least in theory, for even Brandenburg to permit
the First Amendment to be overridden in cases of intentional, explicit,
advocacy of immediate substantial illegality when such illegality is
likely to occur.60

IV. THE PERSISTENCE OF CLEAR AND PRESENT DANGER

Although the test set forth in Brandenburg has superseded clear

and present danger as the standard to be applied to putative re-
strictions on the advocacy of unlawful conduct, it would be a mistake to
assume that Brandenburg represents the complete demise of the clear
and present danger test as an actual standard to be applied today to
actual restrictions. In some number of domains, the clear and present
danger standard persists, largely because the basic idea of requiring
reasons of special strength to override the First Amendment remains

55
395 U.S. 444 (1969). On the ins and outs of the Brandenburg test, see Larry Alexander,
Inciting, Requesting, Provoking, or Persuading Others to Commit Crimes: The Legacy of Schenck
and Abrams in Free Speech Jurisprudence, 72 S.M.U. L. REV. 389, 392–95 (2019); Gerald Gunther,
Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History,
27 STAN. L. REV. 719 (1975); Linde, supra note 49; Frank R. Strong, Fifty Years of “Clear and
Present Danger”: From Schenck to Brandenburg—and Beyond, 1969 SUP. CT. REV. 41 (1969).
56
244 F. 535 (S.D.N.Y. 1917).
57
See 395 U.S. at 447 (“[The] State [may not] forbid or proscribe advocacy of the use of force
or of law violation except where such advocacy is directed to inciting or producing imminent law-
less action and is likely to incite or produce such action.”).
58
See, e.g., Higgins v. Ky. Sports Radio, LLC, 951 F.3d 728, 736 (6th Cir. 2020); United States
v. Daley, 378 F. Supp. 3d 539, 555–56 (W.D. Va. 2019).
59
See Eugene Volokh, Crime–Facilitating Speech, 57 STAN. L. REV. 1095 (2005); James v.
Meow Media, Inc., 300 F.3d 683 (6th Cir. 2002); Sanders v. Acclaim Entm’t, Inc., 188 F.2d 1264
(D. Colo. 2002).
60
Not everything that is ex ante likely to happen actually happens, and thus Brandenburg
would sometimes permit sanctions against a speaker urging immediate violent actions even if
those actions did not in fact occur.
255] FREE SPEECH OVERRIDES 263

central, even though not all reasons of special strength fit the Branden-
burg formula, designed as it is to deal with the specific problem of ad-
vocacy of unlawful conduct.
Consider, for example, the line of cases dealing with speech that
has the potential of interfering with the judicial process. It is now wisely
as well as widely accepted that newspaper and other public comments
about trials and judges, even during the pendency of the trial, are pro-
tected by the First Amendment.61 In reaching this conclusion, the Su-
preme Court has explicitly established that clear and present danger to
the administration of justice is the relevant standard.62 And although
the cases so holding predate Brandenburg, it seems plain that the Bran-
denburg formula would fit poorly with a situation in which the potential
danger is to the impartiality of judges and jurors, and is not that some
reader or listener will engage in unlawful acts against those judges or
jurors (or litigants). When the Court in Cox v. Louisiana63 suggested
that physical parading and picketing outside a courtroom or a court-
house might be governed by different standards,64 it appeared implicitly
to reaffirm that clear and present danger would be the standard applied
to so-called pure speech about pending trials.
Although the Cox majority treated the physical aspect of parading
and picketing as grounds for its ambivalence about the applicability of
the clear and present danger standard, that ambivalence seems a bit
surprising. Twenty-five years earlier, in Thornhill v. Alabama,65 the
Court did indeed discuss clear and present danger as the standard ap-
propriate to a situation in which the petitioners’ labor-related picketing
was held to be protected.66 Cox thus appears as a slight anomaly, and a
fair conclusion to be drawn from the cases just discussed—none of
which have been overruled or questioned—is that clear and present
danger still has its place even after Brandenburg, and that the Bran-
denburg formulation—for all of its enduring importance—still might be
understood as an exception to a more pervasive and persistent clear and
present danger approach.67

61
See Wood v. Georgia, 370 U.S. 375 (1962); Pennekamp v. Florida, 328 U.S. 331 (1946);
Bridges v. California, 314 U.S. 252 (1941).
62
See Wood, 370 U.S. at 384–87; Pennekamp, 328 U.S. at 346; Bridges, 314 U.S. at 263; see
also Craig v. Harney, 331 U.S. 367, 377 (1947).
63
379 U.S. 559 (1965).
64
Id. at 562–65.
65
310 U.S. 88 (1940).
66
See id. at 104–05. See also, in the same year, Carlson v. California, 310 U.S. 106, 113 (1940),
and, a year later, Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941). And,
slightly earlier, Herndon v. Georgia, 295 U.S. 441, 447–48, 454 (1935) (Cardozo, J., dissenting),
followed by Herndon v. Lowry, 301 U.S. 242, 261–64 (1937).
67
For a thorough exploration of the idea of clear and present danger as a “fall back” approach,
see Leslie Kendrick, On “Clear and Present Danger,” 94 NOTRE DAME L. REV. 1653, 1655, 1662–63
264 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2020

Much more importantly, however, clear and present danger retains

continuing—indeed, increasing—vitality in the context of what has
come to be understood as the problem of the hostile audience.68 The par-
adigm application of Brandenburg, a paradigm going back to Schenck,
is to a speaker (or writer) addressing an actually or potentially sympa-
thetic audience and urging that audience to action. Charles Schenck,
Eugene Debs, Jacob Frohwerk, and Jacob Abrams, for example, each
tried to persuade those who were already inclined to share their social-
ist or anarchist or anti-war proclivities to put those proclivities into ac-
tion by resisting the draft or in other ways interfering with the war ef-
fort.69 And Clarence Brandenburg, speaking to his fellow Klansmen
(and maybe some cows) on a field in southern Ohio, was prosecuted for,
again, encouraging predisposed followers to unlawful action.70
What makes this characterization of the line of cases from Schenck
to Brandenburg interesting here is precisely the fact that not all dan-
ger-producing speakers produce that danger by encouraging, urging, or
inciting their sympathetic followers to take socially detrimental and
typically unlawful actions. Even putting aside the cases typically apply-
ing Brandenburg to civil actions seeking to hold speakers (or, typically,
publishers) liable for negligently inspiring or facilitating unlawful ac-
tion,71 there are many instances in which violence is the genuinely un-
intended (by the speaker) and truly undesired (by the speaker) byprod-
uct of an otherwise lawful speech. Typically this occurs when an

(2019). For a concern about precisely this state of affairs, see Ronald J. Krotoszynski, Jr., The Clear
and Present Dangers of the Clear and Present Danger Test: Schenck and Abrams Revisited, 72
S.M.U. L. REV. 415 (2019).
68
See generally Frederick Schauer, Costs and Challenges of the Hostile Audience, 94 NOTRE
DAME L. REV. 1671 (2019). Contemporary conflicts on college campuses have generated a recent
and growing corpus of commentary. See, e.g., Suzanne B. Goldberg, Free Expression on Campus:
Mitigating the Costs of Contentious Speakers, 41 HARV. J. L. & PUB. POL’Y 163 (2018); Darrell A.
H. Miller, Constitutional Conflict and Sensitive Places, 28 WM. & MARY BILL RTS. J. 459 (2019);
Kevin Francis O’Neill, Disentangling the Law of Public Protest, 45 LOY. L. J. 411 (1999); Christina
E. Wells, Free Speech Hypocrisy: Campus Free Speech Conflicts and the Sub–Legal First Amend-
ment, 89 U. COLO. L. REV. 533 (2018); see also Feiner v. New York, 340 U.S. 315, 320 (1951); Note,
Freedom of Speech and Assembly: The Problem of the Hostile Audience, 49 COLUM. L. REV. 1118
(1949).
69
On the activities of defendants Schenck, Debs, Frohwerk, and Abrams leading to their pros-
ecutions, see HEALY, supra note 27; POLENBERG, supra note 30; GEOFFREY R. STONE, PERILOUS
TIMES: FREE SPEECH IN WARTIME: FROM THE SEDITION ACT OF 1798 TO THE WAR ON TERRORISM
135–234 (2004)
70
See Brandenburg v. Ohio, 395 U.S. 444, 445 (1969); see also Steve Kissing, Brandenburg v.
Ohio, CINCINNATI MAG., Aug. 2001, at 14–15.
71
See Volokh, supra note 59; James v. Meow Media, Inc., 300 F.3d 683 (6th Cir. 2002); Sanders
v. Acclaim Entm’t, Inc., 188 F.2d 1264 (D. Colo. 2002); see also Rice v. Paladin Enter., 128 F.3d
233 (4th Cir. 1997); Herceg v. Hustler Magazine, Inc., 814 F.2d 1017 (5th Cir. 1987); Olivia N. v.
Nat’l Broad. Co., 178 Cal. Rptr. 888 (Ct. App. 1981). See generally David A. Anderson, Incitement
and Tort Law, 37 WAKE FOREST L. REV. 957 (2002); Leslie Kendrick, Note, A Test for Criminally
Instructional Speech, 91 VA. L. REV. 1973 (2005).
255] FREE SPEECH OVERRIDES 265

audience reacts violently to what a speaker non-violently has said, and

this, in a nutshell, is the problem of the hostile audience.
The hostile audience problem has been around and generating Su-
preme Court opinions for almost a century. Early on, Feiner v. New
York72 held it permissible to restrict the speaker in order to prevent vi-
olence brought about by an audience angry at the speaker (and thus not
incited or encouraged by the speaker).73 But a series of cases in the
1960s involving civil rights demonstrators and marchers effectively
overruled Feiner, and required that restrictive actions in cases of hostile
and potentially (or actually) violent reactions to speakers be directed
not against the speaker, but against those who engaged in or threatened
to engage in the reactive violence.74
As recent events have made clear, the problem of the hostile audi-
ence is not only still with us, but increasing at a rapid rate.75 And thus
the question persists—in an age of burgeoning listener violence—as to
when speakers might be restricted in order to deal with audience vio-
lence, or, more commonly, when an entire event might be shut down,
thus restricting the speakers as well as the audience.
Here again, it turns out that the clear and present danger standard
may still be with us. In what is perhaps the first hostile audience case,
Cantwell v. Connecticut,76 the Supreme Court explicitly used clear and
present danger as the standard to be applied when violence is threat-
ened by those who react negatively to a speaker’s speech.77 And not only
did Terminiello v. City of Chicago78 nine years later employ the same
standard,79 but in the same year so also did Feiner v. New York, even if
the subsequent cases of the 1960s have made clear that the Feiner
Court’s toothless application of that standard could not satisfy the re-
quirements of the First Amendment.
The fact that neither Cox, nor Edwards, nor Gregory employed
clear and present danger language in casting grave doubts on Feiner
suggests that the best conclusion, in light of Cantwell and Terminiello,

72
340 U.S. 315 (1951).
73
I put aside the complexities created by speakers who intentionally provoke or attract a hos-
tile audience, and thus who can be said to encourage or desire angry listeners in just this sense.
74
See Gregory v. Chicago, 394 U.S. 111 (1969); Cox v. Louisiana, 379 U.S. 536 (1965); Edwards
v. South Carolina, 372 U.S. 229 (1963). Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992),
which held unconstitutional an attempt by the county to require the speakers the bear the finan-
cial costs of increased security occasioned by the hostile audience, can be understood as reaffirming
the basic thrust of Gregory, Cox, and Edwards, and thus as reaffirming the interment of Feiner.
75
For more on recent events, of which that in Charlottesville is the most well–known, see the
commentaries cited in note 68.
76
310 U.S. 296 (1940).
77
See id. 311.
78
337 U.S. 1 (1949).
79
See id. at 4.
266 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2020

is simply that the question remains open. And that conclusion is sup-
ported by the way in which lower courts have wrestled with the issue,
with some of those courts concluding that clear and present danger re-
mains the test for when a speaker or an event can be closed down be-
cause of the reactions of a hostile audience,80 while other courts and
judges do not mention clear and present danger in the process of pro-
tecting speakers from restrictions arising out of the reactions of a hos-
tile audience.81
Although the law remains unfortunately unclear on the issue, it is
hard to imagine that speakers (or the events at which they are speak-
ing) can never be restricted because of the actual or potential reactions
of a hostile audience. As a result, perhaps the best we can imagine as a
workable standard is some version of a clear and present danger test
combined with a least restrictive alternative approach. Consider, for ex-
ample, a clear and present danger of violence that comes from the reac-
tion of a hostile audience to a speaker who did not intentionally provoke
that audience. Such a scenario, increasingly common, might justify not
the immediate arrest of the speaker, but instead a dispersal order by
law enforcement, the disobedience of which might then, and only then,
justify actions against a speaker who disobeyed that order.82 Or, simi-
larly, the existence of that clear and present danger might be grounds—
subject to judicial review—for ordering speakers to change locations or
times in the least restrictive way possible while still avoiding the dan-
ger, with, again, further restrictions on speakers (including prosecu-
tion) being permissible only if those orders to change times and/or
places are disobeyed. And whether the exact language of “clear and pre-
sent danger” is employed or not, a fair conclusion seems to be that at
least some version of that idea must persist. When the just-described
less restrictive alternatives cannot prevent audience violence, and
when existing law enforcement resources are unable to do the same,
then it would be hard to imagine that the ability of speakers to speak
when and where they choose, even in the face of violence that reasona-
ble law enforcement efforts cannot contain, is required by the First
Amendment. And whether it is clear and present danger or some vari-
ant thereof that represents the standard, it is equally hard to imagine

80
See Glasson v. City of Louisville, 518 F.2d 899 (6th Cir. 1975); Christian Knights of the Ku
Klux Klan Invisible Empire, Inc. v. District of Columbia, 751 F. Supp. 218, 220 (D. D.C. 1990).
81
For an example, see the thorough and complex opinions on both sides of the issue in Bible
Believers v. Wayne Cty., 805 F.3d 228 (6th Cir. 2015).
82
Indeed, Feiner itself is slightly unclear on the issue. Irving Feiner had disobeyed several
police requests (and then, seemingly, orders) to stop speaking before he was finally arrested. See
Feiner v. New York, 340 U.S. 315, 317–18 (1951). The question remains, and neither Feiner nor
any of the subsequent cases answer it, whether the standards for a non–punitive order (the disre-
gard of which might then provide the basis for punishment) are or should be different from the
standards applicable to an immediate arrest or citation.
255] FREE SPEECH OVERRIDES 267

that Brandenburg, designed for a very different kind of problem, would

be the starting or ending point of the analysis.

V. THE QUESTION OF REDRESS

There is much more that could be said about the problem of the
hostile audience, and in light of recent events much of that is likely to
be said in the near future by both courts and commentators. But rather
than engage in further speculation, I want to examine a particular con-
sequence of understanding First Amendment rights as overridable, and
thus of understanding the holder of First Amendment rights as vulner-
able to losing the ability to exercise those rights because of overriding
circumstances. More particularly, I want to expose an anomaly in how
we treat overridden rights, an anomaly especially apparent in hostile
audience situations.
Whether it be by use of the clear and present danger test or with
some other test yet to be developed, it seems plain that there are at least
some instances in which speeches, parades, demonstrations, rallies,
and the like can be ordered to close down or to move because of the
reactions of a hostile audience. As a matter of state law, such responses
by state and local law enforcement authorities are typically effectuated
by means of a declaration of an unlawful assembly,83 but the exact de-
tails are not important here. What is important is that there are, and
have been instances in which some of the consequences of actions by a
hostile audience are such that speakers who would otherwise have First
Amendment rights to say what they are saying will have those First
Amendment rights restricted in some way because of the actual or po-
tential reactions of their unsympathetic listeners.
Under such circumstances, we might then ask what is owed to
those, including many whose moral profile is vastly superior to the
“Unite the Right” demonstrators in Charlottesville, whose First Amend-
ment rights have been curtailed through no fault of their own.84 If by
virtue of what is now commonly labeled the “heckler’s veto”85 a group of
speakers is justifiably restricted in the exercise of what would otherwise

83
See, e.g., VA. CODE ANN. § 18.2–406 (West 2018).
84
I do not ignore the extent to which—especially these days—speakers, protesters, picketers,
paraders, and demonstrators often deliberately provoke the hostile audience, and often do so in
the hopes of a violent reaction. But this is not and need not always be so. Sometimes, not surpris-
ingly, speakers prefer not to be assaulted, and sometimes prefer that violence not occur as a result
of their activities.
85
See R. George Wright, The Heckler’s Veto Today, 68 CASE WEST. RES. L. REV. 159 (2017).
The phrase originated in HARRY KALVEN, JR., THE NEGRO AND THE FIRST AMENDMENT 140–65
(1965) and made its first appearance in the United States Reports in Brown v. Louisiana, 383 U.S.
131 (1966).
268 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2020

be within their First Amendment rights, then what rights of redress or

compensation do the restricted speakers have?
As should be apparent, the answer to this question, as a matter of
existing law and existing political practice, is “nothing.” If the reactions
of a hostile audience rise to the level of a genuine clear and present
danger, and thus if law enforcement is constitutionally justified in re-
stricting the speakers by, for example, declaring an unlawful assembly
and bringing the event to a close, the prevailing practice is that the re-
stricted speakers are entitled to no compensation or other redress. Law
enforcement having, by hypothesis, done the right thing, the state’s ob-
ligations come to an end.
But compare this scenario to the taking of land by eminent domain.
If the state takes (or even, sometimes, restricts the use of86) someone’s
land by eminent domain, then the land-owner who has been deprived of
her land (and therefore her property rights) is entitled to “just compen-
sation” by order of the Fifth Amendment, and that is so even if the tak-
ing was entirely justified.
The anomaly should now be apparent: the land-owner whose prop-
erty rights are overridden for the public good is compensated, but the
speaker or demonstrator whose First Amendment rights are overridden
or restricted is entitled to nothing.
This anomaly might be explained in some number of ways. Perhaps
the anomaly is a function of the longstanding belief that property is
tangible and valuable in ways that rights are not.87 Perhaps it is a func-
tion of the ability to place a monetary value on the property taken in
ways that would be far less possible for the deprivation of free speech
rights.88 Or perhaps it is simply a matter of historical path-dependence
or the power of the we’ve-never-done-it-before-so-we shouldn’t-do-it-
now argument.
If none of these explanations are persuasive (and I offer them as
explanations and not as justifications), then perhaps the anomaly be-
tween how we treat rightful property deprivations and how we treat

86
See Maureen E. Brady, The Damagings Clauses, 104 VA. L. REV. 341 (2018) (explaining how
the law in some states provides compensation even for impairments that do not rise to the level of
takings).
87
The prevailing view now is that property is best understood as a “bundle of rights” and not
a physical thing. See Shane Nicholas Glackin, Back to Bundles: Deflating Property Rights, Again,
20 LEG. 1 (2014) (defending the bundle of rights account). But the longstanding lay belief that
property is defined by its physical presence has its contemporary academic defenders. See J.E.
Penner, The “Bundle of Rights” Picture of Property, 43 UCLA L. REV. 711 (1996).
88
This explanation—the monetization explanation—seems odd, however. If the state wrongly
deprives someone of her free speech rights, she can bring a civil rights action to seek monetary
compensation for what she has lost. See generally JOHN C. JEFFRIES, JR., ET AL., CIVIL RIGHTS
ACTIONS: ENFORCING THE CONSTITUTION (4th ed., 2018). And if this is possible, then it is difficult
to see why there could not similarly be a monetary value attached to a rightful restriction.
255] FREE SPEECH OVERRIDES 269

rightful free speech deprivations could be “cured” in some way. Assum-

ing that the Constitution prohibits limiting the right to compensation
for takings of land, then the only other way to lessen the gap between
what we do for property takings and what we do for speech takings is
to at least think about compensating those who in some way have had
their free speech rights diminished for the public good. And although
we rarely think about this possibility—the possibility of compensating
those whose free speech rights are overridden—it is a possibility that
finds support from two other areas of thought.
One of these areas of thought is in private law, where the questions
about Vincent v. Lake Erie Transportation Co.89 are about whether one
who justifiably injures another’s property is required to compensate the
owner of the damaged property despite the justifiability of the action.
If, as in Vincent, someone who justifiably damages another’s dock in
order to keep from foundering in a storm must nevertheless compensate
the dock-owner for the damages caused, nevertheless, does the state
analogously owe damages to those whose rights are justifiably overrid-
den for the public good?
Once the question is posed this way, it becomes clear that there is
also a relevant domain of philosophical thinking. Many of the philoso-
phers who have thought about nonabsolute (and thus overridable)
rights—Judith Thomson,90 Frances Kamm,91 and Walter Sinnott-Arm-
strong,92 for example—have argued that when rights are rightfully
overridden there is a moral residue,93 such that the infringer still owes
something by way of compensation or other redress to the right-holder
whose rights have been overridden. If these and other philosophers94
are right, then is there a constitutional residue when constitutional
rights are overridden, such that the overrider—the state—similarly
owes compensation even though the state has done the right thing?

89
124 N.W. 221 (Minn. 1910) (suggesting, even if not directly holding, that a shipowner who
justifiably saved his ship in a storm at the cost of damage to someone else’s dock would owe com-
pensation to the dock-owner). Somewhat similar is Ploof v. Putnam, 71 A. 188 (Vt. 1908), conclud-
ing that the shipowner in an analogous situation was not liable in trespass. For commentary on
these cases and the issues they raise, see George C. Christie, The Defense of Necessity Considered
from the Legal and Moral Points of View, 48 DUKE L. J. 975 (1999); John C.P. Goldberg & Benjamin
C. Zipursky, The Strict Liability in Fault and the Fault in Strict Liability, 85 FORDHAM L. REV.
743, 765 n.89 (2016).
90
See JUDITH JARVIS THOMSON, THE REALM OF RIGHTS 84–86, 93–96 (1990); JUDITH JARVIS
THOMSON, RIGHTS, RESTITUTION, AND RISK: ESSAYS IN MORAL THEORY 59–60, 71–72, 76–77 (1986).
91
F.M. KAMM, INTRICATE ETHICS: RIGHTS, RESPONSIBILITIES, AND PERMISSIBLE HARM 249–60
(2007).
92
WALTER SINNOTT–ARMSTRONG, MORAL DILEMMAS 44–53 (1988).
93
This is the term used by THOMSON, THE REALM OF RIGHTS, supra note 90, and SINNOTT–
ARMSTRONG, supra note 92. KAMM, supra note 91, calls it “negative residue.”
94
See also Rex Martin & James W. Nickel, Recent Work on the Concept of Rights, 17 AM. PHIL.
Q. 165 (1980).
270 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2020

In the context of this article and this symposium I do not propose

to answer these questions here. But if we apply those questions specif-
ically to free speech rights under the First Amendment, it turns out that
the questions raised by Vincent v. Lake Erie Transportation Co. and the
aforementioned philosophers are very real, especially in the context of
the problem of the hostile audience.
One qualification is worth noting. In many instances of speeches or
demonstrations that are justifiably restricted, it is the restricted
speaker who has triggered the restriction, and it might seem odd to
think that such a speaker is entitled to redress. If a modern-day Clar-
ence Brandenburg intentionally and explicitly urges his audience to
take specific and immediate violent action against African-Americans
and Jews,95 he can be restricted according to the Brandenburg stand-
ard, but it would seem odd indeed to think that Brandenburg is entitled
to compensation. But, to use another hypothetical (and decidedly coun-
terfactual) scenario, if the hostile audience reactions against a modern-
day Reverend Elton Cox96 are such that his otherwise protected demon-
stration must be curtailed, it seems less odd to think he might be enti-
tled to something. Under existing doctrines and practices, however,
Reverend Cox would get nothing. Civil rights actions would provide re-
dress if the restriction were wrongful, but when the restrictions are
rightful there is no route to a remedy, even if the injury to him—not
being able to speak—is the same.

VI. CONCLUSION

I have unsatisfyingly ended with a question to which I do not pur-

port to provide an answer. Nor do I think that the question and the
anomaly that generates it are the most important things to consider
when we are addressing the kinds of issues that arise from the way in
which free speech rights can be overridden. But the anomaly and the
questions about how, if it all, to resolve them represent at least one po-
tentially interesting corner of the larger question of free speech over-
rides generally. Given that the baseline free speech standards have be-
come ever more speech protective, as the progression from Schenck to
Brandenburg shows, it is easy to lose sight of the nonabsolute character
of even the most highly speech-protective doctrines. But the hostile au-
dience problem—no longer restricted to the epiphenomenal factual sce-
narios that characterized cases like Cantwell, Terminiello, and Feiner—
is no longer an epiphenomenal problem, and considering the standards

95
This was not the exact language he used. See Brandenburg v. Ohio, 395 U.S. 444, 446 (1969).
96
From Cox v. Louisiana, 379 U.S. 536 (1965).
255] FREE SPEECH OVERRIDES 271

and consequences of the way in which free speech rights may be over-
ridden turns out to be more germane than it was in the 1960s or even
in the more recent past.