American Constitutionalism in Historical Perspective (packet)

Frankfurter concurs, but believes the court s/n do this balancing, should be left to the legislature. Nothing irrevocable is done--Congress can change its mind. This is only facial analysis, when comes to actual prosecution will use “as applied” analysis. D/n anticipate its grotesque chilling effect: free speech tragedy.

Jackson concurs, but believes Communism is conspiracy that can be stopped at any stage. (Brandeis in Whitney who emphasizes that should narrowly construe criminal conspiracy law).

Black & Douglas dissent: Douglas believes there is no clear and present danger. Black argues that there should be no test, or the test should be more demanding.

Criticism of Dennis: Ignores broad principle of subversive advocacy whose protection is at core of free speech. Deep equality principle, all speech and speakers stand equal. Ct took it as a facial case and b/c d/n predict how would be misread by public. Ignored precedent: Holmes in Gitlow: need to be deferential to speaker in area where free speech most needed.

Facial v. As Applied Analysis:

AS APPLIED	OVERBREADTH
Have view of what counts as unprotected and protected speech	No fact sensitivity—d/n require appellate ct to retry facts. What’s the reasonable scope of the application of the statute?
Have view that if the govt is making choices in domain of protected speech this is per se unconstitutional UNLESS there is a clear and present danger	Are any substantial number of applications of statute used quite clearly against protected speech when there is no clear and public danger? (antiwar, gay rts dissent)
Interpret punitive statute, state or federal, and say this can only be applied to protected speech or unprotected speech where there is a clear and present danger.	It’s unconstitutional facially. Ct d/n try to narrow statute but lets congress or state legislation draw it more narrowly although there still is “as applied” analysis.
Judiciary rewrites statute and applies it to the facts. If it can’t apply it, strikes it down.

1. 
   History: used facial analysis, saying some of these regs are OK, while others are prohibited. Sent message to US that they could war on the left, unleashed McCarthy regime by agreeing that Communism rep clear & present danger sufficient to justify restricting speech. Forced later cases to rely on as applied analysis to narrow application, but this type of fact specific analysis burdens the judiciary.
   
2.