Ad Hoc Balancing Theory: Definition & Examples

Instructor: Brittany McKenna

Brittany is a licensed attorney who specializes in criminal law, legal writing, and appellate practice and procedure.

In this lesson you will be introduced to the concept of ad hoc balancing as it relates to the law and constitutional rights. You'll be provided with examples of the theory. Then you can test your knowledge with a quiz.


You don't have to be a constitutional scholar to understand why you shouldn't yell 'FIRE!' in a crowded movie theater. There are some limitations on free speech that just make sense, but where does our right to express ourselves end and other important rights begin?

When a conflict arises between our freedom of expression (as guaranteed by the First Amendment) and other rights, the ad hoc balancing theory is applied to determine which right should take priority. The ad hoc balancing theory is not really a theory at all, but more of a problem-solving strategy used by courts to resolve thorny constitutional questions. Since every situation is different, the ad hoc balancing theory emphasizes a case-by-case approach -- this means that courts must carefully consider the unique facts and issues in each case in order to reach the correct decision.

Ad hoc balancing works by examining the interests of both of the parties in an action and weighing those interests. The ultimate question is this: which constitutional right in this case is more important to society to protect? Think of ad hoc balancing as using a scale to weigh competing rights and values. There are pros and cons of enforcing one right at the expense of the other. Every case has a winner and a loser, and, in the case of ad hoc balancing, the winner is the right that 'tips the scales'.

Courts have traditionally considered freedom of expression as occupying a preferred position among our constitutional rights. If you imagine literally weighing each constitutional right, think of a thumb pushing down on the freedom of expression side of the scale. A competing constitutional interest must be compelling in order to justify a limitation on, or outweigh, free speech. A limitation in this context may mean a legal sanction or some other negative social response.


The ad hoc balancing theory first rose to prominence in the United States Supreme Court's 1972 Branzburg v. Hayes trilogy of cases. Branzburg was a reporter who published an article about drug use. Branzburg interviewed drug users and producers who did not want to be identified in the article. Local law enforcement agencies called Branzburg to testify before a grand jury to name his sources. The reporter refused, arguing that freedom of the press protected him from being compelled to testify.

The Supreme Court weighed the right to report the news against the responsibility to provide relevant testimony about criminal conduct. Ultimately, the Supreme Court decided that reporters could not avoid the witness stand by claiming a First Amendment privilege -- the danger posed to society by unchecked criminal conduct was greater than the freedom to report the news.

As you can see from the Branzburg case, ad hoc balancing is often used by courts to resolve difficult constitutional questions. Put on your robe, take up your gavel, and consider the following examples.

Example 1

You are a judge in a big city that is home to a large Jewish community. A Neo-Nazi political group plans on traveling to your city to hold a parade in the heart of the city. But the group's application for a parade permit is denied by the city government. City officials are afraid that the group's presence might start a riot. The case is now in your courtroom. How would you apply the ad hoc balancing theory to the facts of this case?

On one side of the scale is the political group's right to express itself. On the other side of the scale is the city's interest in protecting its citizens. To be sure, this is an important right. But is it enough to justify a limitation on free speech? Does a Neo-Nazi parade rise to the level of yelling 'FIRE!' in a crowded theater? Probably not. Even unpopular speech is protected speech under the First Amendment. Therefore, the Neo-Nazi group has a right to express its controversial point of view. Certain expressions that are aimed at inciting violence, however, may not be afforded the protection of the First Amendment.

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