Tests for Possible Violations of the First Amendment

Regardless of which theory was popular at any given moment, there have always been media messages that would cause such controversy as to require the court system to test their validity against the First Amendment. Therefore, in answer to this periodic need, three main tests eventually evolved that were used widely in U.S. Supreme Court decisions when possible violations of the First Amendment were involved. These tests were the clear and present danger test, the O’Brien test, and the strict scrutiny test.

Clear and present danger has historically been the popular standard for whether the First Amendment has been violated. Seen as early as 1917, clear and present danger is based on the premise that the government may protect citizens from messages that would “create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” This statement, written by Justice Oliver Wendell Holmes in Schenck v. United States (1919), was used to convict two men who had circulated print messages against the draft during World War I. It is interesting to note that the same judge later amended his earlier position to specify in Abrams v. United States (1919) that messages must show a purposeful and immediate intent to cause danger.

In 1968, another case gave birth to a new First Amendment test. United States v. O’Brien involved a young man, David O’Brien, who was convicted of burning his draft card in front of a Massachusetts courthouse in 1966. O’Brien appealed his conviction on the grounds of free speech, and he won the review of the U.S. Supreme Court. The Court evaluated the case under three grounds. First, the conviction was tested to see if it aided a substantial government interest. Second, the substantial government interest was tested to see if it was necessarily tied to the suppression of free speech. Third, the government’s actions were tested to see if they were no more severe than needed to further the substantial interest. This three-pronged test, which led the Court to uphold O’Brien’s conviction and subsequently came to be referred to as the O’Brien test, is still used by federal and state courts to decide many First Amendment cases that involve government interference.

A more stringent test of government interference and violation of the First Amendment is the strict scrutiny test, which was first applied in Preferred Communications v. City of Los Angeles (1989). This test mirrors the O’Brien test, but there are two major changes. First, the government interest that the O’Brien test claimed should be “important” or “substantial” must, under strict scrutiny, be “compelling.” Second, the way in which the government furthers this compelling interest must be in the least restrictive manner possible, as opposed to “no greater than necessary.” The strict scrutiny test is employed whenever a government restriction directly affects First Amendment protections. In contrast, the O’Brien test is used in cases where First Amendment rights are indirectly affected by government involvement. Consequently, the government usually prefers the use of the O’Brien test over the strict scrutiny test because it is easier to prove that an interest is “substantial” rather than “compelling,” and it is much easier to argue that an imposed restriction is “no more severe than needed” rather than “the least restrictive manner possible.”

Of course, these three tests, which apply to all media, only constitute a fraction of the tests that may apply to broadcasting. Whereas print media enjoy relatively few restrictions and regulations, the electronic media must operate with substantial regulation. For example, section 1464 of the U.S. Criminal Code prohibits the broadcasting of “obscene, indecent, or profane language.”