Among constitutional rights, free speech wears the golden shield. It is the right we imagine as absolute: untouchable, radiant, a mark of a free society. Yet the real story of the First Amendment is not purity but tension: a constant struggle between the urge to protect speech at all costs and the need to manage its collision with other values.
Once you accept that speech deserves special protection, the next question becomes: how special? Justice Hugo Black answered by taking the text literally. “Congress shall make no law…” meant exactly that—no exceptions, no balancing acts, no judicial trimming. For him, the framers already weighed freedom and order in 1791; the Court’s only duty was to enforce their decision. Absolutism, to Black, was a moral commitment. Every “reasonable” exception, he warned, chipped away at freedom until it disappeared entirely.
Justice Felix Frankfurter admired that purity but found it impossible. Rights, he believed, don’t exist in isolation. Speech collides with security, protest with order, liberty with equality. Ignoring those conflicts, he argued, doesn’t make them go away. The judge’s task was to acknowledge them honestly, to balance competing interests in light of real-world context. Where Black saw the Constitution as a fixed rulebook, Frankfurter saw it as a living framework for managing tension in a pluralistic democracy.
The absolutist vision was powerful but brittle. The Court soon faced cases that shattered its simplicity. During World War I, anti-draft activists were convicted under the Espionage Act for distributing leaflets opposing military service. In Schenck v. United States (1919), Justice Holmes introduced the “clear and present danger” test, allowing punishment for speech that posed an imminent threat to lawful order. Later cases extended that logic. Even Holmes and Brandeis, the era’s great free speech champions, accepted that words could be regulated when they crossed into incitement. Absolutism gave way to pragmatism.
To navigate this new complexity, the Court developed two methods: categorization and balancing. Categorization gives us rules that define which types of speech fall outside constitutional protection. These “unprotected” zones include obscenity, fighting words, incitement, true threats, and defamation. Categorical rules are simple and predictable. They tell us, in theory, where the line lies. But the categories themselves are products of history; moral judgments frozen in time. What counts as “obscene” or “dangerous” says as much about the fears of one era as it does about any universal truth.
Balancing, by contrast, rejects rigid boxes. It treats each case as unique, weighing the value of speech against the government’s justification for limiting it. In United States v. O’Brien (1968), the Court upheld a law against burning draft cards, balancing the protestor’s expressive intent against the state’s need to maintain its draft system. In Pickering v. Board of Education (1968), it balanced a teacher’s right to criticize the school board against the school’s interest in efficiency. And in New York Times v. United States (1971)—the Pentagon Papers case—it sided with the press after balancing secrecy against democratic accountability. Balancing makes doctrine more flexible, but also more unpredictable. It depends on judicial judgment rather than bright lines, and that discretion can shift with culture or politics.
In practice, the two methods coexist. Even strict scrutiny, which seems like balancing, often operates as a categorical rule because speech almost always wins. And most “unprotected” categories began as balancing tests that hardened into rules. As scholars put it, “categories are balancing in disguise.”
Justice John Paul Stevens once observed a similar pattern in Equal Protection law. He criticized the Court’s rigid tiers of scrutiny as relics of their moral moment—hierarchies that reflected which struggles felt urgent at the time. The same is true of free speech. The lines we draw around “low-value” speech—obscenity, commercial advertising, fighting words—encode the moral vocabulary of the past. Each category is a snapshot of what an earlier generation feared most: indecency, disorder, manipulation. Those judgments linger long after the culture that birthed them has moved on.
Both absolutism and balancing seek to defend the golden shield, but in different ways. Categorization offers stability; balancing offers adaptability. Yet neither escapes history. The First Amendment, like the society it protects, is a living record of shifting values. It is proof that even our most cherished freedoms evolve with time, testing again and again what it truly means to speak freely.
I find myself struggling with wanting to subscribe to a absolutist view, but stopping myself short of too many what ifs. I think Holmes "clear and present danger" test is overbroad and places too many restrictions on wartime speech. I understand the government's interest in avoiding disorder during times of war, but Americans' free speech should not trampled because of the choices government leaders make in spite of citizens wishes. If anything, a time of war should encourage Americans to be outspoken and voice their opinions to the government/others. The government is supposed to reflect our interests and values, yet it seeks to limit speech at arguably the most important time Americans' voices should be heard. We see what happens in other countries when speech is second rate to a government's interests to protect from unrest like the Tiananmen Square Massacre. I find the "incitement" test is a step in the right direction from the "clear and present danger" test. The "incitement" test better safeguards individuals who's speech may unintentionally incite people into lawless action. Sometimes people have emotional outcries that were never meant to cause harm, but instead were meant to vent frustrations. Often the line is can be easy to draw in cases were people directly call people to commit acts of violence. Regardless we are still in a situation where different judges can come to very different conclusions on what speech is likely to incite imminent lawless action and was intended to do so.
I really resonate with Preston’s sentiment of contradiction and going too far in an absolutist view of the first amendment. I find myself more convinced by an anti-categorical argument and more inclined to take a very context based approach. I can’t remember which justice offered this approach now, but I do feel that it’s about as fair as it could get in balancing the competing interests that people have on this issue. It also ties back to another post about when the courts get decisions wrong, and a question that was posed about whose responsibility it is to set the record straight or how we can even go about seeing through the falsehoods spread that allow for the construction and employment of concentration camps. I feel the same way here as I did there. While we might feel very little faith in our current Supreme Court justices to go forth on a path of fair and honest truth, I think we all need to engage in the very deep and difficult critique of what “worst case” we want to be protected in when it comes to free speech. Where would you want the line drawn for yourself? Would you want to be able to say Eat the Rich at a rally and not end up in court with a charge of inciting violence towards rich people who live in the buildings people protest outside of? I understand that, on the left especially, we can see our actions as nonviolent and nonthreatening, but if people want to offer a standard for limiting speech I think we need to be REALLY sure that it can’t be reapplied in a way that limits speech with the best of intentions. In a perfect world, the context based approach works in favor *whoever’s* ideological view, and it seems like the best option, but it relies too much on judges and justices to get the “truth” right, and I’m not willing to bank on that.