Also known as: hand balancing tests · hand-balance test · hand-balance tests · balancing test
Written by attorneys · grounded in primary & secondary sources — see below
A test for determining whether government may restrict speech that weighs the gravity of the evil, discounted by its improbability, against the invasion of free speech necessary to avoid the danger.
Hazel Hoffman distributed pamphlets urging workers to strike and seize factories if wages were not raised within thirty days. The government sought to enjoin the distribution under a sedition statute. A court applied the Hand balancing test and found the gravity of violent overthrow, even if improbable in the short term, justified the limited speech restriction because the potential harm outweighed the incremental burden on expression.
Hector Huerta obtained a permit to hold weekly rallies criticizing local zoning on a vacant lot he owned. After a rezoning barred such gatherings, he continued the events. Officials moved to stop him. Under the Hand balancing test the court concluded the evil of potential public disorder, discounted by its low likelihood given peaceful prior events, did not justify shutting down the rallies.
Select any source to read its text and confirm it supports the definition.
Hakeem Harris, a city engineer, wrote an internal memo warning that a planned bridge project risked collapse and sent copies to a newspaper. His supervisor disciplined him for the disclosure. Applying the Hand balancing test the court held the gravity of possible structural failure, even if remote, justified protecting the speech because the danger to public safety outweighed any workplace disruption.
Hannah Hughes organized protests at a newly designated historic building to oppose preservation rules that blocked redevelopment. The city sought an injunction limiting protest size and timing. The court used the Hand balancing test and determined the evil of delayed construction, discounted by its improbability of causing immediate harm, did not justify the speech restriction given the modest burden on assembly rights.
Hassan Hakim preached that believers should refuse to comply with a new land-use ordinance restricting worship gatherings. Prosecutors charged him with incitement. Under the Hand balancing test the court found the gravity of potential civil disobedience, discounted by its low probability, did not support criminal sanctions because the speech posed no concrete threat warranting suppression.
Hana Hashimoto mailed letters accusing a rival firm of unsafe products and urged consumers to boycott. The competitor sued for defamation and sought a preliminary injunction. The court applied the Hand balancing test and concluded the gravity of possible economic harm, discounted by its improbability given truthful elements in the letters, did not justify enjoining the speech.
The test weighs the gravity of the evil that the speech might produce, discounted by the improbability of that evil occurring, against the degree of invasion of free speech required to prevent the danger. Courts therefore compare the seriousness of the threatened harm with how likely it is to materialize and then decide whether the resulting speech restriction is justified.
Supporting sources
The clear and present danger test focuses on whether the speech creates an immediate threat of serious harm. The Hand balancing test instead discounts the gravity of the evil by its improbability and then balances that adjusted gravity against the speech restriction needed to avert the danger, allowing restrictions even when the harm is not imminent if the evil is grave enough.
Supporting sources
The Supreme Court adopted the test in a case involving advocacy of violent overthrow of the government. The majority applied the formulation that asks whether the gravity of the evil, discounted by its improbability, justifies the necessary invasion of free speech.
Supporting sources
…if not entirely subjective, concept. There are countless factors bearing on whether a statement is reliable; the nine-factor balancing test applied by the Court of Appeals below is representative. See, e. g. , People v. Farrell , 34 P. 3d 401, 406-407 (Colo. 2001) (eight-factor test). Whether a statement is deemed reliable…