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Bridges and Terminiello

  • 1941 Supreme Court regarding labor leader Harry Bridges ended with majority ruling that speech should only be restricted as "clear and present danger" in rare cases of extremely serious risk
  • 1949 Terminiello decision ruled that offensive or inflammatory speech was protected under the First Amendment in most cases

Over time, the majority within the Court did move toward a more complete acceptance of Holmes's clear and present danger test. In 1941, in Bridges v. California, the Supreme Court offered a summary of the state of the question. In this case, the contempt citations filed against a newspaper and a labor leader critical of judicial rulings had been appealed to the Supreme Court on the grounds that such criticism was protected by the First Amendment. The Court threw out the citations arguing that while disrespect for the judiciary was indeed a substantive evil, it did not warrant the imposition of restrictions on speech. "What finally emerges from the 'clear and present danger' cases," wrote Justice Hugo Black, "is a working principle that the substantive evil must be extremely serious, and the degree of imminence extremely high, before utterances can be punished."46

In 1949, in Terminiello v. City of Chicago, the nuances within Holmes's position were reflected still further when the Court overturned Arthur Terminiello's conviction for breach of peace. (Terminiello, a Catholic priest, had given an inflammatory anti-Semitic speech before a large crowd in Chicago.) During the original trial, the judge had instructed jury members to find Terminiello guilty if they concluded that his speech "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance." But the Supreme Court held that this definition of breach of peace was unconstitutional. Writing for the majority, Justice William Douglas argued that one of the purposes of speech was to "to invite dispute." In fact, speech "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." Echoing Holmes's earlier formulation, the Court held that speech rights were not absolute and there were occasions when the state could justifiably act to restrain or punish speech. But as a rule, speech—no matter how offensive—was protected "unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."47

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