LE, MEANING

The rule requires that before an utterance can be penalized by
government it must, ordinarily, have occurred "in such circumstances or
have been of such a nature as to create a clear and present danger" that
it would bring about "substantive evils" within the power of government
to prevent.[74] The question whether these conditions exist is one of
law for the courts, and ultimately for the Supreme Court, in enforcement
of the First and/or the Fourteenth Amendment;[75] and in exercise of its
power of review in these premises the Court is entitled to review
broadly findings of facts of lower courts, whether State or federal.[76]

CONTRASTING OPERATION OF THE COMMON LAW RULE

In Davis _v._ Beason,[77] decided in 1890, the question at issue was the
constitutionality of a statute of the Territory of Idaho, providing that
"no person who is a bigamist or polygamist, or who teaches, advices,
counsels or encourages any person or persons to become bigamists or
polygamists or to commit any other crime defined by law, or to enter
into what is known as plural or celestial marriage, or who is a member
of any order, organization or association which teaches, advises,
counsels or encourages its members or devotees or any other persons to
commit the crime of bigamy or polygamy, or any other crime defined by
law, either as a rite or ceremony of such order, organization or
association, or otherwise, is permitted to vote at any election, or to
hold any position or office of honor, trust or profit within this
Territory." A unanimous court held this enactment to be within the
legislative powers which Congress had conferred on the Territory and not
to be open to any constitutional objection. Said Justice Field for the
Court: "Bigamy and polygamy are crimes by the laws of all civilized and
Christian countries. They are crimes by the laws of the United States,
and they are crimes by the laws of Idaho. They tend to destroy the
purity of the marriage relation, to disturb the peace of families, to
degrade woman and to debase man. Few crimes are more pernicious to the
best interests of society and receive more general or more deserved
punishment. To extend exemption from punishment for such crimes would be
to shock the moral judgment of the community. To call their advocacy a
tenet of religion is to offend the common sense of mankind. If they are
crimes, then to teach, advise, and counsel their practice is to aid in
their commissio