clear and present danger test in California

1977The opinion of our Supreme Court in In re Blaney, 30 Cal.2d 643, 648 [ 184 P.2d 892 ], defined free speech guarantees in labor disputes as follows: “ ‘Such conduct may be performed in the exercise of civil liberties, guaranteed by both our federal and state Constitutions.’ (In re Porterfield, supra [ 28 Cal.2d 91 ] p. 114.) It has been indicated, however, that the protection afforded by the free speech guarantee of the right to publicize a labor dispute by picketing, boycotting or otherwise is not absolute or necessarily controlled by the clear and present danger test.

1977The opinion of our Supreme Court in In re Blaney, 30 Cal.2d 643, 648 [ 184 P.2d 892 ], defined free speech guarantees in labor disputes as follows: “ ‘Such conduct may be performed in the exercise of civil liberties, guaranteed by both our federal and state Constitutions.’ (In re Porterfield, supra [ 28 Cal.2d 91 ] p. 114.) It has been indicated, however, that the protection afforded by the free speech guarantee of the right to publicize a labor dispute by picketing, boycotting or otherwise is not absolute or necessarily controlled by the clear and present danger test.

2003Dist. (1946) 28 Cal.2d 536, 542-543 [ 171 P.2d 885 ]; see also Bridges v. California (1941) 314 U.S. 252, 262-263 [ 62 S.Ct. 190, 193-194 , 86 L.Ed. 192, 202-203 , 159 A.L.R. 1346 ]; Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 367 [ 341 P.2d 310 ].) But there is no talismanic formula for application of the clear and present danger test; rather, it is by nature a balancing test requiring the exercise of significant judicial or quasi-judicial discretion.

2003Dist. (1946) 28 Cal.2d 536, 542-543 [ 171 P.2d 885 ]; see also Bridges v. California (1941) 314 U.S. 252, 262-263 [ 62 S.Ct. 190, 193-194 , 86 L.Ed. 192, 202-203 , 159 A.L.R. 1346 ]; Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 367 [ 341 P.2d 310 ].) But there is no talismanic formula for application of the clear and present danger test; rather, it is by nature a balancing test requiring the exercise of significant judicial or quasi-judicial discretion.

2003Dist. (1946) 28 Cal.2d 536, 542-543 [ 171 P.2d 885 ]; see also Bridges v. California (1941) 314 U.S. 252, 262-263 [ 62 S.Ct. 190, 193-194 , 86 L.Ed. 192, 202-203 , 159 A.L.R. 1346 ]; Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 367 [ 341 P.2d 310 ].) But there is no talismanic formula for application of the clear and present danger test; rather, it is by nature a balancing test requiring the exercise of significant judicial or quasi-judicial discretion.

2003Dist. (1946) 28 Cal.2d 536, 542-543 [ 171 P.2d 885 ]; see also Bridges v. California (1941) 314 U.S. 252, 262-263 [ 62 S.Ct. 190, 193-194 , 86 L.Ed. 192, 202-203 , 159 A.L.R. 1346 ]; Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 367 [ 341 P.2d 310 ].) But there is no talismanic formula for application of the clear and present danger test; rather, it is by nature a balancing test requiring the exercise of significant judicial or quasi-judicial discretion.

1973Even before then, the very case which announced it, Schenck v. United States, 249 U.S. 47, 50-51 [ 63 L.Ed. 470, 472-473 , 39 S.Ct. 247 ], did not apply it; the test was finessed in Gitlow v. New York, 268 U.S. 652, 668-671 [ 69 L.Ed. 1138, 1146-1148 , 45 S.Ct. 625 ], apparently found unnecessary to sustain First Amendment claims in a whole series of cases (e.g.

1973Even before then, the very case which announced it, Schenck v. United States, 249 U.S. 47, 50-51 [ 63 L.Ed. 470, 472-473 , 39 S.Ct. 247 ], did not apply it; the test was finessed in Gitlow v. New York, 268 U.S. 652, 668-671 [ 69 L.Ed. 1138, 1146-1148 , 45 S.Ct. 625 ], apparently found unnecessary to sustain First Amendment claims in a whole series of cases (e.g.

1973Frankfurter’s dissenting opinions in Bridges v. California, supra, 314 U.S. at p. 279 [ 86 L.Ed. at p. 212 ] and Craig v. Harney, supra, 331 U.S. at p. 384 [ 91 L.Ed. at p. 1556 ]; and his concurring opinion in Dennis v. United States (1951) 341 U.S. 494, 539 [ 95 L.Ed. 1137, 1168 , 71 S.Ct. 857 ]), and as giving too little.

1973Frankfurter’s dissenting opinions in Bridges v. California, supra, 314 U.S. at p. 279 [ 86 L.Ed. at p. 212 ] and Craig v. Harney, supra, 331 U.S. at p. 384 [ 91 L.Ed. at p. 1556 ]; and his concurring opinion in Dennis v. United States (1951) 341 U.S. 494, 539 [ 95 L.Ed. 1137, 1168 , 71 S.Ct. 857 ]), and as giving too little.

1973We agree.” (New York Times Co. v. United States (1971) 403 U.S. 713, 714 [ 29 L.Ed.2d 822, 824-825 , 91 S.Ct. 2140 ].) In applying the clear-and-present danger test to the order under review, we must decide whether the prohibition against publication of the identities of the nine prosecution witnesses may be justified in the interests of a fair trial, and whether solid evidence exists (see Wood v. Georgia (1962) 370 U.S. 375, 393-395 [ 8 L.Ed.2d 569, 582-583 , 82 S.Ct. 1364 ]) to establish that this limited prior restraint on publication was necessary in order to guarantee a fair trial.

1973We agree.” (New York Times Co. v. United States (1971) 403 U.S. 713, 714 [ 29 L.Ed.2d 822, 824-825 , 91 S.Ct. 2140 ].) In applying the clear-and-present danger test to the order under review, we must decide whether the prohibition against publication of the identities of the nine prosecution witnesses may be justified in the interests of a fair trial, and whether solid evidence exists (see Wood v. Georgia (1962) 370 U.S. 375, 393-395 [ 8 L.Ed.2d 569, 582-583 , 82 S.Ct. 1364 ]) to establish that this limited prior restraint on publication was necessary in order to guarantee a fair trial.

2023(E.g., Abrams v. United States (1919) 250 U.S. 616, 624-631 (dis. opn. of Holmes, J.) [proposing the clear-and-present-danger test for the First Amendment]; Adkins v. Children’s Hospital (1923) 261 U.S. 525 , 567–570 (dis. opn. of Holmes, J.) [“The question in this case is the broad one, whether Congress can establish minimum rates of wages for women”].) Another Lochner-era decision Green cited is Robins Dry Dock & Repair Co. v. Dahl (1925) 266 U.S. 449, 457 (Dahl).

2023(E.g., Abrams v. United States (1919) 250 U.S. 616, 624-631 (dis. opn. of Holmes, J.) [proposing the clear-and-present-danger test for the First Amendment]; Adkins v. Children’s Hospital (1923) 261 U.S. 525 , 567–570 (dis. opn. of Holmes, J.) [“The question in this case is the broad one, whether Congress can establish minimum rates of wages for women”].) Another Lochner-era decision Green cited is Robins Dry Dock & Repair Co. v. Dahl (1925) 266 U.S. 449, 457 (Dahl).

2003(Sun Co. of San Bernardino v. Superior Court (1973) 29 Cal.App.3d 815, 826-827 [ 105 Cal.Rptr. 873 ].) Statutory procedures with respect to suspension of school students were enacted to meet the constitutional requirements of due process.

2003(Sun Co. of San Bernardino v. Superior Court (1973) 29 Cal.App.3d 815, 826-827 [ 105 Cal.Rptr. 873 ].) Statutory procedures with respect to suspension of school students were enacted to meet the constitutional requirements of due process.

2003Dist. (1946) 28 Cal.2d 536, 542-543 [ 171 P.2d 885 ]; see also Bridges v. California (1941) 314 U.S. 252, 262-263 [ 62 S.Ct. 190, 193-194 , 86 L.Ed. 192, 202-203 , 159 A.L.R. 1346 ]; Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 367 [ 341 P.2d 310 ].) But there is no talismanic formula for application of the clear and present danger test; rather, it is by nature a balancing test requiring the exercise of significant judicial or quasi-judicial discretion.

2003Dist. (1946) 28 Cal.2d 536, 542-543 [ 171 P.2d 885 ]; see also Bridges v. California (1941) 314 U.S. 252, 262-263 [ 62 S.Ct. 190, 193-194 , 86 L.Ed. 192, 202-203 , 159 A.L.R. 1346 ]; Katzev v. County of Los Angeles (1959) 52 Cal.2d 360, 367 [ 341 P.2d 310 ].) But there is no talismanic formula for application of the clear and present danger test; rather, it is by nature a balancing test requiring the exercise of significant judicial or quasi-judicial discretion.

1973Even before then, the very case which announced it, Schenck v. United States, 249 U.S. 47, 50-51 [ 63 L.Ed. 470, 472-473 , 39 S.Ct. 247 ], did not apply it; the test was finessed in Gitlow v. New York, 268 U.S. 652, 668-671 [ 69 L.Ed. 1138, 1146-1148 , 45 S.Ct. 625 ], apparently found unnecessary to sustain First Amendment claims in a whole series of cases (e.g.

1973Even before then, the very case which announced it, Schenck v. United States, 249 U.S. 47, 50-51 [ 63 L.Ed. 470, 472-473 , 39 S.Ct. 247 ], did not apply it; the test was finessed in Gitlow v. New York, 268 U.S. 652, 668-671 [ 69 L.Ed. 1138, 1146-1148 , 45 S.Ct. 625 ], apparently found unnecessary to sustain First Amendment claims in a whole series of cases (e.g.

1973Under any one of the phrases, reviewing courts . . . [must] appraise the comment on a balance between the desirability of free discussion and the necessity for fair adjudication, free from interruption of its processes.” {Pennekamp v. Florida, supra, 328 U.S. 331, 336 [ 90 L.Ed. 1295, 1298 ].) The clear-and-present danger test 11 has been severely criticized both as giving too much protection to speech (see J.

1973Under any one of the phrases, reviewing courts . . . [must] appraise the comment on a balance between the desirability of free discussion and the necessity for fair adjudication, free from interruption of its processes.” {Pennekamp v. Florida, supra, 328 U.S. 331, 336 [ 90 L.Ed. 1295, 1298 ].) The clear-and-present danger test 11 has been severely criticized both as giving too much protection to speech (see J.

1973Frankfurter’s dissenting opinions in Bridges v. California, supra, 314 U.S. at p. 279 [ 86 L.Ed. at p. 212 ] and Craig v. Harney, supra, 331 U.S. at p. 384 [ 91 L.Ed. at p. 1556 ]; and his concurring opinion in Dennis v. United States (1951) 341 U.S. 494, 539 [ 95 L.Ed. 1137, 1168 , 71 S.Ct. 857 ]), and as giving too little.

1973Frankfurter’s dissenting opinions in Bridges v. California, supra, 314 U.S. at p. 279 [ 86 L.Ed. at p. 212 ] and Craig v. Harney, supra, 331 U.S. at p. 384 [ 91 L.Ed. at p. 1556 ]; and his concurring opinion in Dennis v. United States (1951) 341 U.S. 494, 539 [ 95 L.Ed. 1137, 1168 , 71 S.Ct. 857 ]), and as giving too little.

1973(Ariz. Const., art. 2, § 11, "provides for an open, public trial and majority opinion rested thereon; concurring opinion also considered the clear-and-present danger test.) A good example of the heavy presumption against the validity of a prior governmental restraint on speech or press may be found in the recent Pentagon Papers decision wherein the United States government sought to enjoin the New York Times and Washington Post from publishing the contents of a classified study entitled “History of United States Decision-Making Processes on Vietnam Policy.” In rejecting the government’s argume

1973We agree.” (New York Times Co. v. United States (1971) 403 U.S. 713, 714 [ 29 L.Ed.2d 822, 824-825 , 91 S.Ct. 2140 ].) In applying the clear-and-present danger test to the order under review, we must decide whether the prohibition against publication of the identities of the nine prosecution witnesses may be justified in the interests of a fair trial, and whether solid evidence exists (see Wood v. Georgia (1962) 370 U.S. 375, 393-395 [ 8 L.Ed.2d 569, 582-583 , 82 S.Ct. 1364 ]) to establish that this limited prior restraint on publication was necessary in order to guarantee a fair trial.

1973We agree.” (New York Times Co. v. United States (1971) 403 U.S. 713, 714 [ 29 L.Ed.2d 822, 824-825 , 91 S.Ct. 2140 ].) In applying the clear-and-present danger test to the order under review, we must decide whether the prohibition against publication of the identities of the nine prosecution witnesses may be justified in the interests of a fair trial, and whether solid evidence exists (see Wood v. Georgia (1962) 370 U.S. 375, 393-395 [ 8 L.Ed.2d 569, 582-583 , 82 S.Ct. 1364 ]) to establish that this limited prior restraint on publication was necessary in order to guarantee a fair trial.

1970(Cox v. Louisiana (1965) 379 U.S. 536, 549 [ 13 L.Ed.2d 471, 481 , 85 S.Ct. 453 ].) In dealing with First Amendment freedoms, college administrators, law enforcement officials, and judges must be able to differentiate between peaceful demonstrations and violent activities, between peaceful assemblies and unlawful assemblies, and must be ready, willing, and able to apply the clear and present danger test and to strike an impartial balance between conflicting interests.

1970(Cox v. Louisiana (1965) 379 U.S. 536, 549 [ 13 L.Ed.2d 471, 481 , 85 S.Ct. 453 ].) In dealing with First Amendment freedoms, college administrators, law enforcement officials, and judges must be able to differentiate between peaceful demonstrations and violent activities, between peaceful assemblies and unlawful assemblies, and must be ready, willing, and able to apply the clear and present danger test and to strike an impartial balance between conflicting interests.

1969(See Schenck v. United States, 249 U.S. 47, 52 [ 63 L.Ed. 470, 473 , 39 S.Ct. 247 ]; Thomas v. Collins, 323 U.S. 516 [ 89 L.Ed. 430 , 65 S.Ct. 315 ] ; Weaver v. Jordan, 64 Cal.2d 235, 243 [ 49 Cal.Rptr. 537 , 411 P.2d 289 ].) In Bridges (p. 263 [86 L.Ed. p. 203]) the court said: “What finally emerges from the ‘clear and present danger’ eases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremly high before utterances can be punished.” Here, the evil the trial court sought to prevent by its order was the denial of a fair trial to all par

1969(See Schenck v. United States, 249 U.S. 47, 52 [ 63 L.Ed. 470, 473 , 39 S.Ct. 247 ]; Thomas v. Collins, 323 U.S. 516 [ 89 L.Ed. 430 , 65 S.Ct. 315 ] ; Weaver v. Jordan, 64 Cal.2d 235, 243 [ 49 Cal.Rptr. 537 , 411 P.2d 289 ].) In Bridges (p. 263 [86 L.Ed. p. 203]) the court said: “What finally emerges from the ‘clear and present danger’ eases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremly high before utterances can be punished.” Here, the evil the trial court sought to prevent by its order was the denial of a fair trial to all par

1966In any event, the clear and present danger test has not been applied in such cases." ( Id. at p. 911.) We next come to application of one phase of the "balancing test." A First Amendment absolutist like Mr. Justice Black has conceded the present ascendancy of the so-called balancing test (e.g., his dissenting opinions in Barenblatt v. United States (1959) 360 U.S. 109, 140-144 [ 79 S.Ct. 1081 , 3 L.Ed.2d 1115 ]; El Paso v. Simmons (1965) 379 U.S. 497, 517 [ 85 S.Ct. 577 , 13 L.Ed.2d 446 ], and Scales v. United States (1961) 367 U.S. 203, 259 [ 81 S.Ct. 1469 , 6 L.Ed.2d 782 ]).

1966In any event, the clear and present danger test has not been applied in such cases." ( Id. at p. 911.) We next come to application of one phase of the "balancing test." A First Amendment absolutist like Mr. Justice Black has conceded the present ascendancy of the so-called balancing test (e.g., his dissenting opinions in Barenblatt v. United States (1959) 360 U.S. 109, 140-144 [ 79 S.Ct. 1081 , 3 L.Ed.2d 1115 ]; El Paso v. Simmons (1965) 379 U.S. 497, 517 [ 85 S.Ct. 577 , 13 L.Ed.2d 446 ], and Scales v. United States (1961) 367 U.S. 203, 259 [ 81 S.Ct. 1469 , 6 L.Ed.2d 782 ]).

1966In any event, the clear and present danger test has not been applied in such cases." ( Id. at p. 911.) We next come to application of one phase of the "balancing test." A First Amendment absolutist like Mr. Justice Black has conceded the present ascendancy of the so-called balancing test (e.g., his dissenting opinions in Barenblatt v. United States (1959) 360 U.S. 109, 140-144 [ 79 S.Ct. 1081 , 3 L.Ed.2d 1115 ]; El Paso v. Simmons (1965) 379 U.S. 497, 517 [ 85 S.Ct. 577 , 13 L.Ed.2d 446 ], and Scales v. United States (1961) 367 U.S. 203, 259 [ 81 S.Ct. 1469 , 6 L.Ed.2d 782 ]).

1966In any event, the clear and present danger test has not been applied in such cases." ( Id. at p. 911.) We next come to application of one phase of the "balancing test." A First Amendment absolutist like Mr. Justice Black has conceded the present ascendancy of the so-called balancing test (e.g., his dissenting opinions in Barenblatt v. United States (1959) 360 U.S. 109, 140-144 [ 79 S.Ct. 1081 , 3 L.Ed.2d 1115 ]; El Paso v. Simmons (1965) 379 U.S. 497, 517 [ 85 S.Ct. 577 , 13 L.Ed.2d 446 ], and Scales v. United States (1961) 367 U.S. 203, 259 [ 81 S.Ct. 1469 , 6 L.Ed.2d 782 ]).

1966In any event, the clear and present danger test has not been applied in such cases." ( Id. at p. 911.) We next come to application of one phase of the "balancing test." A First Amendment absolutist like Mr. Justice Black has conceded the present ascendancy of the so-called balancing test (e.g., his dissenting opinions in Barenblatt v. United States (1959) 360 U.S. 109, 140-144 [ 79 S.Ct. 1081 , 3 L.Ed.2d 1115 ]; El Paso v. Simmons (1965) 379 U.S. 497, 517 [ 85 S.Ct. 577 , 13 L.Ed.2d 446 ], and Scales v. United States (1961) 367 U.S. 203, 259 [ 81 S.Ct. 1469 , 6 L.Ed.2d 782 ]).

1966In any event, the clear and present danger test has not been applied in such cases." ( Id. at p. 911.) We next come to application of one phase of the "balancing test." A First Amendment absolutist like Mr. Justice Black has conceded the present ascendancy of the so-called balancing test (e.g., his dissenting opinions in Barenblatt v. United States (1959) 360 U.S. 109, 140-144 [ 79 S.Ct. 1081 , 3 L.Ed.2d 1115 ]; El Paso v. Simmons (1965) 379 U.S. 497, 517 [ 85 S.Ct. 577 , 13 L.Ed.2d 446 ], and Scales v. United States (1961) 367 U.S. 203, 259 [ 81 S.Ct. 1469 , 6 L.Ed.2d 782 ]).

1966He appears to agree with the "cases suggesting that a law which primarily regulates conduct but which might also indirectly affect speech can be upheld if the effect on speech is minor in relation to the need for control of the conduct." ( Barenblatt v. United States, supra, at p. 141.) Under the balancing test it is no longer sufficient to establish a violation of the First Amendment by merely showing there has been some limitation on speech. ( American Civil *254 Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 210-211 [ 28 Cal. Rptr. 700 , 379 P.2d 4 ].) If there is a reasonable

1966He appears to agree with the "cases suggesting that a law which primarily regulates conduct but which might also indirectly affect speech can be upheld if the effect on speech is minor in relation to the need for control of the conduct." ( Barenblatt v. United States, supra, at p. 141.) Under the balancing test it is no longer sufficient to establish a violation of the First Amendment by merely showing there has been some limitation on speech. ( American Civil *254 Liberties Union v. Board of Education (1963) 59 Cal.2d 203, 210-211 [ 28 Cal. Rptr. 700 , 379 P.2d 4 ].) If there is a reasonable