Free Speech Overrides

This paper, prepared for a University of Chicago Law School symposium on “What’s the Harm? The Future of the First Amendment,” on October 25, 2019, seeks to analyze the circumstances under which even speech admittedly covered by the First Amendment may be justifiably restricted, and the First Amendment thus justifiably overridden. This is the idea implicit in Holmes’s notion of a “clear and present danger” of a century ago, but that idea persists. Although “clear and present danger” has been superseded by the test in Brandenburg v. Ohio for speech advocating illegality, clear and present danger still remains part of the doctrinal architecture of the First Amendment in numerous other contexts, most saliently these days with respect to the circumstances in which speakers may be restricted because of the dangers ensuing from the presence of a hostile audience. After exploring the doctrinal status of clear and present danger in the hundred years since Schenck, the article concludes with some tentative thoughts about the puzzle of compensation for those who free speech rights are justifiably overridden. If those whose property rights are justifiably taken for the public good are entitled to compensation under so-called takings doctrine, then should those whose free speech rights are also justifiably taken for the public good be similarly entitled to compensation or other redress?