⚠️This is a motherfuckin’ excerpt from my upcoming book. If you are confused, you should be. That just means you should follow this blog and buy the goddamn book when it’s out.

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A Constitutional Seizure: The Brief Return of Regular Sucky Balls (Clear and Present Danger) Amid WWII Judicial Epilepsy—and the Rise of Flip-a-Coin Ball Sack Jurisprudence (Ad Hoc Balancing)

The Clear and Present Danger Test Returns—Briefly 

Times changed. The Era of the Test That Sucks Donkey Balls (a.k.a. Bad Tendency) was no longer in vogue, and the Test That Sucks Regular Balls (a.k.a. Clear and Present Danger) had made a comeback with the Filled Milk Footnote Guideline (a.k.a. Preferred Freedoms doctrine) as a trusty sidekick.

Consider Schneider v. State of New Jersey (Town of Irvington) (1939), one of four cases involving debate over the constitutionality of laws that forbade the public distribution of handbills. Basically, Wisconsin, California, and Massachusetts passed laws that said, “Don’t give people paper junk mail because they’ll just throw that on the street,” and New Jersey said, “You can give people your stupid pieces of paper only if you get permission to do so from the cops, because some of those pieces of paper might be written by scammers,” and the Court responded, “We’d rather you let people litter than tell them to shut their pieholes, and oh, cops are not exactly well-known for doing well on the LSAT, so what makes you think they have the right to let some people speak while telling others to shut up?”

Minersville School District v. Gobitis (1940), a.k.a. “My Jesus is Better than Your Jesus Because ‘Murica, Bitch”

But while the Court was starting to warm up to the idea that handing out handbills wasn’t naughty enough to warrant censorship, this judiciary chill-out session was the proverbial tidal recession preceding a tsunami called “American nationalism.” Because at the time, there was this slick-haired fascist hemorrhoid named Adolf Hitler who, as you may have heard, started this thing called World War II, which led to a patriotic panic attack so intense that schools across the States made it compulsory for kids to salute the Stars and Stripes because ‘murica was at WAR again, baby, and whatcha gonna do when they come for you, bad boys, except for unquestioningly accepting that Uncle Sam was perfect and never sucked balls—let alone donkey balls—and that if you didn’t salute the American flag, you were basically a Nazi in the eyes of people who had no clue what a Nazi was?

Enter Lillian Gobitas and William Gobitas, two little kids, both Jehovah’s Witnesses, who heard a 1935 radio broadcast that argued against flag-saluting and called the gesture a form of unbiblical idolatry. So, with infinitely more balls than Hitler had, Lillian and William refused to salute the flag at school and were expelled, ultimately leading to the Supreme Court case Minersville School District v. Gobitis (1940).

Justice Felix Frankfurter delivered the opinion of the Court, which ruled 8-1 against the Gobitas children in the name of “national cohesion” as the country’s highest priority. Yes. Let me reiterate: National cohesion was the highest priority. In other words, Justice My-Last-Name-Sounds-Like-A-German-Sausage basically implied to a religious minority, “Oh, that Filled Milk Footnote Guideline that said that minorities get extra legal protection and that the Bill of Rights, especially the First Amendment, is, like, super-duper important? We were kidding. LMFAO.” And then, suffering from a case of acute, war-induced irony deficiency, the “anti-fascist” American citizenry yelled “‘murica!” and physically attacked Jehovah’s Witnesses on the streets, based on a time-honored American tradition called “freedom because my interpretation of the Bible is the only correct one.” Meanwhile, the only dissenter, Justice Stone (who, if you remember, wrote the Preferred Freedoms doctrine, a.k.a. “Filled Milk Footnote Guideline”), murmured, “Eight justices read my Filled Milk footnote and thought it was a grocery list.”

The Filled Milk Footnote Guideline (Preferred Freedoms Doctrine) Returns, Starring Harrison Ford (Clear and Present Danger Test), Making America Somewhat Less Fascist Again

Anyway, SCOTUS during (and right after) World War II pretty much acted like a pathological gaslighter with mood swings, because just three years later, in West Virginia v. Barnette (1943), the Court ruled 6-3 in favor of some other Jehovah’s Witnesses children who refused to salute the flag, overruling Gobitis, with Justice Robert Houghwout Jackson delivering the majority opinion. This time, two of the justices, Hugo Black and William O. Douglas, who, in Gobitis, ruled against the Jehovah’s Witnesses, concurred and said, “Yeah, we might have fucked up in the past, so now you don’t have to salute the flag or pledge allegiance to the Republic.” Justice Stone naturally agreed and served as the majority’s peppy cheerleader. And of course, Justice Frankfurter, along with his temporary-sleepover BFFs Justices Owen Josephus Roberts and Stanley Forman Reed, dissented, living up to his name as a whiny little wiener of judiciary impotence.

Notwithstanding my earlier characterization of SCOTUS as a “pathological gaslighter with mood swings,” the judicial vibe shift on First Amendment issues was, arguably, not entirely random. In 1940, during the Gobitis ruling, America might still have been feeling a little fragile and insecure about winning World War II. But unless you slept your way through Political Science 101 or had a sucky history teacher, you probably know that governments tend to freak out when they perceive danger and then curtail civil liberties as a kneejerk reaction, and then become more chill about your free speech and expression when confidence in national security is restored.

So, from August 1942 to February 1943, when Hitler got his genocidal ass handed to him in the Battle of Stalingrad, it was increasingly apparent that Germany was going to lose. Barnette was argued on March 11, 1943, literally a month after Germany’s monumental loss to the Soviets. The Court’s pro-free speech decision was made on June 14, 1943. This was also literally a mere month after another major Nazi defeat, in which German field marshal Erwin Rommel, popularly known as the “Desert Fox,” got outfoxed in the North Africa Campaign, leading to the Axis’s expulsion from a whole continent of strategic territory.

And then the Allies invaded Italy in 1943 and Mussolini was arrested, followed by D-Day (June 6, 1944), in which the Allies stormed Normandy and Herr Mustache McMeinKampf was sandwiched between the Soviets and the Allies like the world’s worst war crime hoagie. 

And so less than a year later, when the Supreme Court revisited the issue of free speech and its constitutional limitations in Thomas v. Collins (1945), the justices ruled 6-3 in favor of R.J. Thomas, a labor union guy who ignored a restraining order (served by some Texas  bureaucratic wankers who thought the First Amendment was optional on days ending in ‘y’) and then spoke to an audience of around three hundred people.

Thomas v. Collins is noteworthy not just for its resurrection of the Preferred Freedoms doctrine (a.k.a. Filled Milk Footnote Guideline), which echoes Schneider (that 1939 case that officially allowed people to hand out junk mail). But it also brought back the Clear and Present Danger test, a.k.a. the test that sucks regular balls, courtesy of Schenck (1919). As Justice Wiley Rutledge stated in his majority opinion:

[This] case confronts us again with the duty our system places on this Court to say where the individual’s freedom ends and the State’s power begins. Choice of that border, now as always delicate, is perhaps more so where the usual presumptive supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment… For [this] reason any attempt to restrict those liberties must be justified by clear public interest, threatened not … remotely, but by a clear and present danger [emphasis added].

By writing that, Rutledge pretty much told America, “The Filled Milk thing might sound like an inarticulate cow mooing in Legalese, but it’s buddy-buddy with Clear and Present Danger—you know, that Harrison Ford test better known to preeminent historians as ‘regular sucky balls’. So now you don’t have to swallow donkey balls (Bad Tendency) anymore. Cheers.”

The Rise of Ad Hoc Balancing, a.k.a. The We-Are-Justices-of-the-Supreme-Court-but-We-Have-No-Idea-What-the-Fuck-We’re-Doing-So-We’ll-Just-Flip-a-Coin-and-See-What-Happens Test of Ball Sack Jurisprudence Amid Post-WWII Paranoia and Judicial Restraint

Ball Sack Jurisprudence

Oh. We’re going to have lots of fun covering this piece-of-shit “test.” You see, just when you thought that you could finally say some cathartically offensive shit without illegally hurting the country’s ego, the Court said, “Just kidding, fuckface. Why? Because we can.”

But rather than simply saying, “You can’t say any stupid shit,” the Court said, “We have a new test: Whether you can say stupid shit depends on each situation. The freedom to say stupid shit must be balanced with societal order. We’ll strike a ‘wise balance’ between the two by considering each case independently. In other words, we’ll just wing it. Oh, and this new test is called ‘ad hoc balancing’ because the Latin words sound smart enough to cover our asses.”

Don’t believe me? Here’s what Justice Frankfurter said in Kovacs v. Cooper (1949): “Preferred freedoms” is a “mischievous phrase.” Yeah. Justice Sizzledick just non-ironically called the Filled Milk Footnote Guideline “naughty.”

He then said that a “wise accommodation between liberty and order always has been, and ever will be, indispensable for a democratic society,” so strike a “wise balance” between the two.

That’s why I call it the We-Are-Justices-of-the-Supreme-Court-but-We-Have-No-Idea-What-the-Fuck-We’re-Doing-So-We’ll-Just-Flip-a-Coin-and-See-What-Happens Test of Ball Sack Jurisprudence.

It’s an eminently reasonable and self-explanatory nickname.

Ad hoc balancing can also go by “Ball Sack Jurisprudence” for short. Because rather than flip a coin, the justices might play Eenie Meenie Minie Moe with a scrotum to determine whether the legislative or the judicial testicle wins.

As I previously mentioned, Ball Sack Jurisprudence sneaked into SCOTUS with Kovacs v. Cooper (1949), in which a local law said, “You need to keep the noise down, so stop using loud audio equipment and noisy shit on the streets.” Even though the majority opinion of the Court applied the Preferred Freedoms doctrine (Filled Milk), the people making loud noises lost and the law was upheld. And that’s when Justice Frank-Phallus concurred. While agreeing with the outcome, he criticized the Court’s use of Filled Milk for being naughty and said, “Let’s be real, I get hard for legislative balls, so let’s double down on Ball Sack Jurisprudence and strike a ‘wise balance’ between free speech and order!”

And what did he mean by “wise balance”? THIS:

So long as a legislature does not prescribe what ideas may be… expressed and what may not be, nor discriminate among those who would make inroads upon the public peace, it is not for us to supervise the limits the legislature may impose.

BLT: “Yo, I’m a lazy ho. Pretty much all laws are Constitutional. Telling you STFU because Congress said so… is a “compelling government interest” fo sho. Unless they go overboard—and I don’t know what that means—there’s a wise balance, ho ho ho.”

Judicial Restraint (Or “Why the Court Started Playing Ball Sack Roulette”)

So what the fuck happened that led to this?

Well, everybody and their mother know that right after WWII, the United States said to the Soviets, “Thanks for kicking some Nazi ass, but we’re still scared of your commie ass.” And then from the late ‘40s to ‘50s, a scheming son of a bitch by the name of Senator Joseph McCarthy led a bunch of other steaming piles of human fertilizer to lie and say, “The commies have infiltrated the U.S. government as well as Hollywood!”

You might remember that Communist Party member Dalton Trumbo was one of the many American movie directors who was called to the House Un-American Activities Committee to testify against his scary red buddies. Well, even more than a decade later, that type of national anxiety disorder was still happening. In Barenblatt v. United States (1959), university professor Lloyd Barenblatt was also forced to visit the House Committee, which interrogated him with regards to his political and religious affiliations. Barenblatt refused to talk to the House Committee and was found in contempt of Congress. And by this time, even more justices had begun to piss their pants at the thought of Communism. Many of them started worshipping Ball Sack Jurisprudence too, with Justice John Marshall Harlan II delivering the opinion of the Court and upholding the constitutionality of Congress’s behavior.

Bummer, I know. But there’s more. In the early days of that long period of widespread paranoia, Justice Stone, of Filled Milk fame, died of a cerebral hemorrhage in April 1946 and was replaced by Chief Justice Frederick M. Vinson, who shared a stick that went up his ass with Justice Fart-Further Frankfurter as they wanked off to a good ol’ fashioned genre of jurisprudential porn called “judicial restraint” in a metaphorical Supreme Court circle-jerk joined by two other conservative justices, Tom C. Clark and Sherman Minton, who replaced two liberal justices, Frank Murphy and Rutledge. “And WTF is judicial restraint?” you might ask. Here’s how judicial restraint might be properly characterized:

Judicial Restraint: “Under the doctrine of judicial restraint, the Court defers to the legislative judgment if a rational basis for legislation is demonstrated.”

– Justice Lewis Franklin Powell Jr.

BLT: “Congress is a toddler in a legislative playground. The Court is its parent. But the Court will not be a helicopter parent unless it’s absolutely and obviously necessary.”

And remember rational basis? I said, previously, that rational basis is like Oprah handing out rubber stamps that say “You get a law! You get a law! Every stupid law gets upheld!”

But there’s another aspect of judicial restraint besides letting Congress do its thing in the name of rational basis.

Also Judicial Restraint: “Stare decisis (Latin for “to stand by things decided”) is an important restraint on judges. It ensures stability in the law and promotes the public legitimacy of courts by binding judges to follow principles separate from their personal proclivities.” 

– Alicia Bannon, Professor of Law at NYU

BLT: Another feature of judicial restraint is that the justices should try to adhere to stare decisis, which is a fancy of way of saying “follow legal precedent.” This means that justices should try to make decisions based on the way things were done in the Court in the past, instead of letting things like how good their lunch was, how sexy the lawyer looked, and how many brain cells the justices burned Googling themselves before oral arguments affect their rulings.

The Many Problems With Judicial Restraint

So yes, judicial restraint has its advantages, and it might even sound sort of cool… like kinky bondage erotica involving senior citizens in black robes. But no, judicial restraint is not perfect. Far from it. Because in addition to giving rise to the Ad Hoc Balancing test (a.k.a. Ball Sack Jurisprudence), judicial restraint arguably comes with broader problems like:

1. Abdication of Judicial Duty:

The main purpose of SCOTUS is to interpret the Constitution, a.k.a. the Law of All Laws, so that dumbass lawmakers don’t pass whatever laws they want, rationalizing those laws by interpreting the Constitution however it suits them. Justices who exercise judicial restraint by deferring to Congress or the President are not just failing to do their job right. Those justices are allowing self-serving idiots to thrive in a supposed democracy and are hence not doing their job at all. Period.

2. Perpetuation of Injustice

Justices are at best human and at worst barely functional legal automata with strong biases that lead to sexist, racist, ableist, or otherwise unjust decisions. Strict adherence to judicial restraint allows justices to abandon something called “critical thinking” and repeat those unjust decisions, thereby perpetuating injustices.

3. Undue Deference to Legislative and Executive Branches

If the Court exercises judicial restraint too much, the Legislative Branch (i.e., Congressional dipshits) and the Executive Branch (i.e., the President of the Unhinged Sack of Asshats) can do whatever the hell they want and get away with it, destroying something called checks and balances. This may lead to Congressional dipshits making their own self-serving decisions for the rest of America, in which case we’ll have “tyranny of the majority,” or it may lead to the President making his own decisions for everyone, in which case we have pure old-fashioned tyranny.

4. Hindrance to Constitutional Evolution

Judicial restraint prevents the Constitution from evolving—which it (arguably) should. For instance, when Jeff-o the Pedo wrote the First Amendment more than 200 years ago, he couldn’t have anticipated TikTok or—and I’m not making this up—a congressman literally named Anthony Weiner sending dick pics to underaged girls. Instead of sitting on its ass, SCOTUS needs to decide how to deal with that type of “free expression” as well as whatever weird shit American society may come to accept, tolerate, or reject.

5. Inconsistency and Hypocrisy in Application

Lastly, judicial restraint is applied selectively, leading to inconsistency or hypocrisy. In other words, if you have a sneaking suspicion that a Supreme Court justice smokes weed while listening to NPR, that justice would probably, “coincidentally,” say it’s unconstitutional for laws to limit the speech of stoned teenagers. And if another justice is over there clutching his annotated Federalist Papers while dry-heaving over the phrase “contemporary community standards,” and dissenting so hard he gives himself a textualist nosebleed, then yeah—he’s probably not voting in favor of some kid with a Sharpie and a free speech boner (foreshadowing: BONG HiTS 4 JESUS).

Plus, the idea that judicial restraint calls for both adherence to stare decisis (the Court will apply previous legal reasoning and follow precedent) and deference to Congress (the Court will let Congress do pretty much whatever it wants) sometimes gives it an excuse to make decisions based on the justices’ own ideological biases. For instance, if adhering to stare decisis in a particular case means that the Court must not let Congress have its way, as would have been the case had they continued applying Preferred Freedoms (Filled Milk), then justices who would rather people shut up and follow Congress’s laws might break away from stare decisis. They’d instead start some newfangled, hypocritical idiocy like Ad Hoc Balancing (Ball Sack Jurisprudence) and say, “Look, we’re still respecting Congress’s decisions in the name of judicial restraint and we’re totally not prejudiced against commies, naughty teenagers, and loudmouthed trolls, even though we’re totally ruling against them all the time.”

So What Could You Say Under Ball Sack Jurisprudence?

Okay. It’s been a while since we considered the type of messed-up shit we can say if we found ourselves in the States in the political and judicial climate under discussion. So let’s take a break from legal history, go back to the 1950s, and say things like “I’m hard for democracy and capitalism.”

Yeah. That’s about all the suggestive crap you could safely say in public under Ball Sack Jurisprudence (ad hoc balancing)—unless, again, if you’re Allen Fuckin’ Ginsburg or his other white weirdo Beatnik buddies with a very American name. Then you might get away with saying shit on the pretext of poetic license. 

Here’s my “poem”: “America, shall I compare thee to a summer’s cock? Thou art more horny and more desperate, so let’s violate some sodomy laws.”

Or, if you want Agent Dickface to blush: “America, capitalism can suck my dick.”

But then again, if you were some loud and ballsy rando, you’d be arrested for being gay and communist.

And even if you weren’t a rando, the legal risks were high. Indeed, Ginsburg made the smart decision to flee to Tangier (that’s motherfuckin’ Morocco, yes) immediately after publishing his infamous poem Howl. But poet Lawrence Ferlinghetti, who published Howl at City Lights Books, was arrested on obscenity charges (more on that later on when we get to the issue of obscenity) in 1957 and dragged into court. Customs agents seized copies of Howl and probably had a stroke reading lines like “… who let themselves be fucked in the ass by saintly motorcyclists, and screamed with joy…”

Ferlinghetti was acquitted, setting the stage for the loosening of America’s virginal asshole, but his case never reached the Supreme Court, so rough gay sex with motorcyclists definitely didn’t have the final word at that point.

A Final Word on Ball Sack Jurisprudence (Ad Hoc Balancing) and How It Was No Different from Sucking Donkey Balls (Bad Tendency)

So if you couldn’t propound socialist, communist, anarchist views under Ball Sack Jurisprudence (ad hoc balancing) in the ‘50s, and you couldn’t profess your love for Russian women without causing a legal shitshow under the Britney Spears Song Title of Sucky Donkey Balls (Bad Tendency) in 1919, what judicial difference was there between the two tests? 

The answer: None.

For purely theoretical purposes, there may have been some differences if you wanted to get pedantic.

But for practical purposes, it made no difference.

So if you thought that Ball Sack Jurisprudence somehow made you freer than the Donkey Balls Test, then yes—you just got boned by the asinine genitalia of SCOTUS taxonomy.

No. I’m not making this up. Even Lee Epstein and Thomas G. Walker, authors of the excellent book Constitutional Law for a Changing America: Rights, Liberties, and Justice, said this about American Association v. Douds (1950), an early post-Cold War case in which the Court upheld a law that required union leaders to proclaim nonaffiliation with the Communist Party before their unions could be recognized as legit:

[Justice] Vinson’s standard [of ad hoc balancing] is akin to the bad tendency test of the 1920s. Both operate under the assumption that the First Amendment protects the public good, as defined by legislatures, rather than individual expression.

BLT: Both Ball Sack Jurisprudence and Sucking Donkey Balls assume that Congress is right when it limits what you can say, and the First Amendment does not protect your speech and expression.

That’s the Supreme Court laughing at your dumbass for not understanding case law. And if you thought it couldn’t get any worse, you got another doublethink coming. Now, as Ball Sack Jurisprudence seems simultaneously to be and not to be Donkey Balls and even more confusing legal jargon joins the fray, Schrödinger’s Protection Principle is more important than ever for maintaining some semblance of sanity in this Orwellian nightmare.

So yes. It’s about to get worse. As you read about Dennis v. United States (1951), whose ruling applied a new and confusingly named test called Clear and Probable Danger (not Clear and Present Danger), keep in mind the massive anti-communist political pressures that influenced 1950s SCOTUS decisions and the resulting jumble of legal fuckery that gave America a bad case of First Amendment ADHD.

Clear and Probable Danger and Dennis v. United States (1951)

On July 20, 1948, eleven communists were again (yeah, I know… again) in trouble. These commies, leaders of the National Board of the Communist Party, were indicted for conspiring to violently overthrow Uncle Sam’s government in violation of the Smith Act (1940), which prohibited anyone from intentionally advocating or teaching said overthrow, from encouraging it, or from being a member of any organization that ever considered yelling “Viva la Stalin!” at a children’s piano recital while holding a ferret in one hand and a Molotov cocktail in the other. (Yes, that sounds like awesomeness. And yes, that was pretty much the nightmare of a paranoid postwar America.)

The communists were each sentenced to five years in prison and a $10,000 fine. Afterwards, when this case reached the Supreme Court as Dennis v. United States (1951), the defense argued that the Smith Act is unconstitutional because it made it illegal to even teach the violent overthrow of the government. In fact, they said, the communist defendants simply wanted “to work for the improvement of conditions under capitalism and not for chaos and depression.” So the defense was basically saying, “Look, scumbags, making it illegal to teach how an American coup d’état works is like making it illegal to explain social studies to a bunch of morons who barely know how to read. Now do you know how to read, Your Honor?” 

(Spoiler: They did know how to read. Just not how to interpret the First Amendment without saluting the flag first.)

The defense also said that the Smith Act made it illegal for simply agreeing to say, distribute, or organize something the government deemed subversive. In other words, you didn’t have to do anything overtly illegal to violate the Smith Act.

Lastly, the communists’ side challenged the Court’s prevailing horseshit lines of reasoning against Free Speech since Bad Tendency (Donkey Balls) and ad hoc balancing (Ball Sack Jurisprudence), calling for the justices to bring back Clear and Present Danger (Regular Sucky Balls).

The respondents (the United States) contended that the Smith Act was not limiting the abstract speech of a few nerds, but preserving democracy and military security in the face of dangerous American leaders of a totalitarian political movement. That’s right. These wankers fell asleep in English class, didn’t understand irony, and just told Big Brother that American communists should be silenced in case the government turned into… Big Brother. They also argued that the communist leaders were indeed trying to incite violence and overthrow the U.S. government—and presented to the court arguments full of international conspiracies, secret passwords, codebooks, and aliases.

The trial lasted nine months and included—I shit you not—sixteen thousand pages of evidence.

Chief Justice Congressional Fleshlight™ Vinson delivered the opinion of the Court, ruling against the communists by concocting a new free speech test known as Clear and Probable Danger—which was very different from the old Clear and Present Danger test—but then confused the hell out of everyone by calling the Clear and Probable Danger test the Clear and Present Danger test anyway.

This Clear and Probable Danger test is based on the legal reasoning of the court of appeals, in which Chief Judge Learned Hand’s (yes, that’s his real name) deliberate misinterpretation of the original Clear and Present Danger test established by Justice Holmes was first presented.

Clear and Probable Danger: “In each case [courts] must ask whether the gravity of the ‘evil’, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”

BLT: “Take the number of Bald Eagle Tears that will be shed if the speech takes place and leads to some evil outcome. Then multiply that number of Bald Eagle Tears by the probability of that evil outcome becoming a reality. If our calculation results in some number that crosses an imaginary and undefined threshold that makes us pee our pants, then you can STFU.” In other words, [Bald Eagle Tears] x [probability] = [some random number that will make us piss ourselves].