In the course of decisions enforcing this test of state action with respect to freedom of speech and press, diversity of opinion has appeared among the Justices upon three closely related topics: first, as to the restrictive force of the test; second, as to the constitutional status of freedom of speech and press; third, as to the kind of speech which the Constitution is concerned to protect. On the first point the following passage from Justice Black's opinion in Bridges v. California[173] is pertinent: "What finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law 'abridging the freedom of speech or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow."[174] With this should be compared the following words from Justice Frankfurter's concurring opinion in Pennekamp v. Florida,[175] which involved a closely similar issue to the one dealt with in the Bridges Case: "'Clear and present danger' was never used by Mr. Justice Holmes to express a technical legal doctrine or to convey a formula for adjudicating cases. It was a literary phrase not to be distorted by being taken from its context. In its setting it served to indicate the importance of freedom of speech to a free society but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution. When those other attributes of a democracy are threatened by speech, the Constitution does not deny power to the states to curb it."[176]
The second question, in more definite terms, is whether freedom of speech and press occupies a "preferred position" in the constitutional hierarchy of values so that legislation restrictive of it is presumptively unconstitutional. An important contribution to the affirmative view on this point is the following passage from an opinion of Justice Cardozo written in 1937: "One may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. * * * So it has come about that the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. The extension became, indeed, a logical imperative when once it was recognized, as long ago it was, that liberty is something more than exemption from physical restraint, and that even in the field of substantive rights and duties the legislative judgment, if oppressive and arbitrary, may be overridden by the courts."[177] Touching on the same subject a few months later, Chief Justice Stone suggested that: "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth." And again: "It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation."[178] But the strongest assertion of this position occurs in Justice Rutledge's opinion for a sharply divided Court in Thomas v. Collins.[179] He says: "The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. * * * That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice. * * * For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. It is therefore in our tradition to allow the widest room for discussion, the narrowest range for its restriction, particularly when this right is exercised in conjunction with peaceable assembly. It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable. They are cognate rights."[180] This was 1945. Four years later the controlling wing of the Court, in sustaining a local ordinance, endorsed a considerably less enthusiastic appraisal of freedom of speech and press. Thus while alluding to "the preferred position of freedom of speech in a society that cherishes liberty for all," Justice Reed went on to say, that this "does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself."[181] And Justice Frankfurter denied flatly the propriety of the phrase "preferred position," saying: "This is a phrase that has uncritically crept into some recent opinions of this Court. I deem it a mischievous phrase, if it carries the thought, which it may subtly imply, that any law touching communication is infected with presumptive invalidity. It is not the first time in the history of constitutional adjudication that such a doctrinaire attitude has disregarded the admonition most to be observed in exercising the Court's reviewing power over legislation, 'that it is a constitution we are expounding,' M'Culloch v. Maryland, 4 Wheat. 316, 407. I say the phrase is mischievous because it radiates a constitutional doctrine without avowing it. Clarity and candor in these matters, so as to avoid gliding unwittingly into error, make it appropriate to trace the history of the phrase 'preferred position.'"[182] which Justice Frankfurter then proceeded to do. Justice Jackson also protested: "We cannot," he said, "give some constitutional rights a preferred position without relegating others to a deferred position."[183]
The third question concerns the quality and purpose of the speech which the Constitution aims to protect. In 1949, Justice Douglas speaking for a divided Court returned the following robustious answer to this question: "* * * a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."[184] But early in 1951 Justice Jackson, in a dissenting opinion, urges the Court to review its entire position in the light of the proposition that "the purpose of constitutional protection of freedom of speech is to foster peaceful interchange of all manner of thoughts, information and ideas," that "its policy is rooted in faith of the force of reason."[185] He considers that the Court has been striking "rather blindly at permit systems which indirectly may affect First Amendment freedom." He says: "Cities throughout the country have adopted the permit requirement to control private activities on public streets and for other purposes. The universality of this type of regulation demonstrates a need and indicates widespread opinion in the profession that it is not necessarily incompatible with our constitutional freedoms. Is everybody out of step but this Court? * * * It seems hypercritical to strike down local laws on their faces for want of standards when we have no standards. And I do not find it required by existing authority. I think that where speech is outside of constitutional immunity the local community or the State is left a large measure of discretion as to the means for dealing with it."[186] This diversity of viewpoint on the Court touching the above questions became of importance when, recently, the Court was faced with the problem of the relation of freedom of speech to the enumerated powers of the National Government, in contrast to the indefinite residual powers of the States.
TAXATION
The Supreme Court, citing the fact that the American Revolution "really began when * * * that government (of England) sent stamps for newspaper duties to the American colonies" has been alert to the possible uses of taxation as a method of suppressing objectionable publications.[187] Persons engaged in the dissemination of ideas are, to be sure, subject to ordinary forms of taxation in like manner as other persons.[188] With respect to license or privilege taxes, however, they stand on a different footing. Their privilege is granted by the Constitution and cannot be withheld by either State or Federal Government. Hence a license tax measured by gross receipts for the privilege of engaging in the business of publishing advertising in any newspaper or other publication was held invalid[189] and flat license fees levied and collected as a pre-condition to the sale of religious books and pamphlets have also been set side.[190]
FEDERAL RESTRAINTS ON FREEDOM OF SPEECH AND PRESS
Regulations of Business and Labor Activities
The application to newspapers of the Anti-Trust Laws,[191] the National Labor Relations Act,[192] or the Fair Labor Standards Act,[193] does not abridge the freedom of the press. In Gompers v. Bucks Stove and Range Co.,[194] the Supreme Court unanimously held that a court of equity may enjoin continuance of a boycott, despite the fact that spoken or written speech was used as an instrumentality by which the boycott was made effective. "In the case of an unlawful conspiracy, the agreement to act in concert when the signal is published gives the words 'Unfair,' 'We Don't Patronize,' or similar expressions, a force not inhering in the words themselves, and therefore exceeding any possible right of speech which a single individual might have. Under such circumstances they become what have been called 'verbal acts,' and as much subject to injunction as the use of any other force whereby property is unlawfully damaged."[195] A cognate test has been applied in determining when communications by an employer constitute an unfair labor practice which may be forbidden or penalized under the National Labor Relations Act without infringing freedom of speech. In Labor Board v. Virginia Power Co.,[196] the Court held that the sanctions of the act might be imposed upon an employer for the protection of his employees, where his conduct "though evidenced in part by speech, * * * (amounted) to coercion within the meaning of the act."[197] In the opinion of the Court, Justice Murphy stated, "The mere fact that language merges into a course of conduct does not put that whole course without the range of otherwise applicable administrative power. In determining whether the Company actually interfered with, restrained, and coerced its employees, the Board has a right to look at what the Company has said, as well as what it has done."[198] But the constitutionality of legislation prohibiting the publication by corporations and unions in the regular course of conducting their affairs of periodicals advising their members, stockholders or customers of danger or advantage to their interest from the adoption of measures or the election to office of men espousing such measures has been declared by the Court to be open to gravest doubt.[199]
REGULATION OF POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES
The leading case touching this subject is Ex parte Curtis, decided seventy years ago.[200] Here was sustained an act of Congress which prohibited, under penalties, certain categories of officers of the United States from requesting, giving to, or receiving from, any other officer, money or property or other thing of value for political purposes.[201] Two generations later was enacted the so-called Hatch Act[202] which, while making some concessions to freedom of expression on matters political by employees of the government, forbids their active participation in political management and political campaigns. The act was sustained against objections based on the Bill of Rights;[203] while an amendment to it the effect of which is to diminish the amount of a federal grant-in-aid of the construction of highways in a State which fails to remove from office "one found by the United States Civil Service Commission to have taken active part in political management or in political campaigns while a member of the state highway commission," was held not to violate Amendment X.[204]