ABSTRACT
The balancing test is a doctrine developed by US and state courts to settle conflicts between the first amendment right to free expression and association, on the one hand, and other constitutional rights and social interests, on the other. The balancing test was developed in the 1950s and 1960s to replace the clear-and-present-danger test. Balancing was used in the 1950s to sustain congressional and state investigations into the associations and activities of individuals suspected of subversion and to sustain proceedings against the Communist Party and its members. Justices Hugo L. Black and William O. Douglas became the best-known opponents to the balancing test. They championed an "absolutist" position, denying the government any power whatsoever to abridge speech. Supporters of the balancing test argue that if courts provide absolute protection for some categories of speech, they will be weakened as political institutions. Balancing continues to be invoked by some Supreme Court justices.
