T: JUDICIAL DIVERSITIES

In the course of decisions enforcing this test of state action with
respect to freedom of speech and press, diversity of opinion has
appeared among the Justices upon three closely related topics: first, as
to the restrictive force of the test; second, as to the constitutional
status of freedom of speech and press; third, as to the kind of speech
which the Constitution is concerned to protect. On the first point the
following passage from Justice Black's opinion in Bridges _v._
California[173] is pertinent: "What finally emerges from the 'clear and
present danger' cases is a working principle that the substantive evil
must be extremely serious and the degree of imminence extremely high
before utterances can be punished. Those cases do not purport to mark
the furthermost constitutional boundaries of protected expression, nor
do we here. They do no more than recognize a minimum compulsion of the
Bill of Rights. For the First Amendment does not speak equivocally. It
prohibits any law 'abridging the freedom of speech or of the press.' It
must be taken as a command of the broadest scope that explicit language,
read in the context of a liberty-loving society, will allow."[174] With
this should be compared the following words from Justice Frankfurter's
concurring opinion in Pennekamp _v._ Florida,[175] which involved a
closely similar issue to the one dealt with in the Bridges Case: "'Clear
and present danger' was never used by Mr. Justice Holmes to express a
technical legal doctrine or to convey a formula for adjudicating cases.
It was a literary phrase not to be distorted by being taken from its
context. In its setting it served to indicate the importance of freedom
of speech to a free society but also to emphasize that its exercise must
be compatible with the preservation of other freedoms essential to a
democracy and guaranteed by our Constitution. When those other
attributes of a democracy are threatened by speech, the Constitution
does not deny power to the states to curb it."[176]

The second question, in more definite terms, is whether freedom of
speech and press occupies a "preferred position" in the constitutional
hierarchy of values so that legislation restrictive of it is
presumptively unconstitutional. An important contribution to the
affirmative view on this point is the following passage from an opinion
of Justice Cardozo written in 1937: "One may say that it is the matrix,
the indispens