UNLIMITED HORIZONS FOR FREE EXPRESSION

Douglas, William O.

Unlimited Horizons For Free Expression by WILLIAM 0. DOUGLAS This article by Justice Douglas is adapted from the first chapter of a new book, The Right of the People, which Doubleday ir Company...

...and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter...
...that magistrates are their trustees and servants, and at all times amenable to them...
...Freedom of expression is a necessary political right once the people have the full right of sovereignty...
...Without it, the nation might drift to a pattern of conformity that loses all relation to the world and its large affairs...
...Jefferson, the spiritual father of the Bill of Rights, and Madison, the astute politician who steered the Bill of Rights through Congress, were of a different school of thought...
...Freedom of expression has many integrating effects on our own society...
...and many other campaign activities can be regulated...
...whereas other men are courageous from ignorance but hesitate upon reflection...
...Rather, they assume that Communism is the ideal state...
...We of the West give printing, pamphleteering, and speaking the preferred position because it was around them that our early battles for freedom were fought...
...The editorial pages of the privately owned metropolitan newspaper, radio and television broadcasts, the pictures and slogans of the advertising agency, the sermon from the pulpit, magazines, books, pamphlets —all have an influence upon public opinion and the outcome of election campaigns...
...He maintained that freedom of the press, for example, "must altogether depend on public opinion...
...People must have knowledge in order to act intelligently...
...This political truth was first clearly stated on these shores by George Mason in the Virginia Declaration of Rights, adopted June 12, 1776: "That all power is vested in, and consequently derived from, the people...
...Amounts contributed to candidates can be controlled...
...For it says in words that are unambiguous, "Congress shall make no law . . . abridging the freedom of speech, or of the press...
...If we are restricted in art, religion, economics, political theory, or any other great field of knowledge, we may become victims of conformity in an age where salvation can be won.only by non-conformity...
...Freedom of expression must cover the entire public domain...
...Through the ballot box, the views of the majority are given practical significance in the operation of government...
...The same seems to be true in Red China, where the Communist regime recently approved a new slogan derived from the Chinese classics: "Let hundreds of schools crow in competition...
...But when sovereignty is in the people, it is distributed equally and in-divisibly among every member of the group...
...The compact of the Constitution is a compact of We The People...
...The people elect their law-makers and their Chief Executive for limited terms only...
...m Jefferson stoutly maintained over the years that "Truth is the proper and sufficient antagonist to error...
...and yet in another person add to the sober knowledge of life and help avoid the development of neurotic tendencies...
...The Federalist, No...
...When a select group is in power, it demands respect and obedience...
...In a state under the domination of the church, the teaching of evolution might be deemed subversive...
...So does the impact of ideas...
...The ultimate political power is in the people...
...Discussion and debate are often finer badges of bravery than battle itself...
...In a democratic society, the expression of a political point of view takes on its greatest significance in connection with the election campaign...
...Under our system of government, strictly private groups may commit themselves to the propagation of one point of view or philosophy if they so desire...
...and freedom was available only to those with brave hearts...
...It cannot be disciplined and informed unless those who shape it have the opportunities for critical inquiry, for the cultivation of open-mindedness, for the search for truth in every recess of the universe...
...To be such it must be disciplined and informed...
...The result was that we have had orgies of censorship of the stage that have been more consistent with the totalitarian than with democratic tradition...
...It chose among conflicting values, selecting the freedom to talk, to argue, and to advocate as a preferred right...
...Then the newspaper publisher may be forbidden to express his political views on the editorial pages of his newspaper...
...The spirit of free inquiry must be allowed to dominate the schools and universities...
...The individual who has a Hyde Park where he may blow off steam and rave and rant releases energies that mount to dangerous proportions if suppressed...
...When sovereignty rests in a man or in a majority, suppression of a minority may be necessary to protect and safeguard the status quo...
...The argument has been that if a group spends beyond a certain amount it is exerting an "undue" influence on the community...
...The First Amendment should give the widest possible protection to the expression of political views...
...In the social sciences, in the humanities, in the arts, and perhaps even in agriculture (as Lysenko showed) the scholar in the totalitarian nation is so restricted as to be a mouthpiece for the ruling group...
...It was revolutionary because it struck at the status quo...
...In Russia there are great debates concerning the course to follow, the choice of procedures, the policy that should be adopted in factories or on farms...
...The legislative function aside, an appreciation of the arts helps produce a society that is civilized, cultured, and mature by allowing individuals to cultivate their utmost capacities...
...Then the minister may be punished for discussing political matters in his sermons...
...There can be no enduring stability in world affairs unless these rights are recognized principles in other lands...
...The meeting led to an acrimonious exchange of words, Khrushchev challenging Gaitskell to tell him the difference between "your democracy and ours...
...Change is the law of politics, if there is to be survival...
...Under those conditions there is no real freedom, as we know it, unless the discussion accepts the premise on which the existing regime rests...
...Efforts have been made to place restrictions on the amount which certain groups could expend for editorializing their views, announcing them in broadcasts, or expressing them through the ancient method of pamphleteering...
...Freedom of expression and the right to resort to the polls are the only instruments available to minorities to wage political and educational campaigns against the status quo of their day...
...Literature and morality should enjoy competitive co-existence...
...The people are the only censors of their governors...
...Many individuals and groups in the United States have the power to exert vast pressures in influencing public opinion...
...this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers...
...The tastes of men differ widely...
...or, perhaps both...
...He is free only in some areas of science such as physics or chemistry, where political ideology does not reach...
...Unless the horizons are unlimited, we risk being governed by a set of prejudices of a bygone day...
...Literature has been a classic form for the dissemination of ideas...
...Gaitskell replied in a flash, "Read Pericles' funeral oration...
...Pericles talked about the secret of happiness: courage, he said, was freedom and freedom was happiness...
...There must be no terminal points on discourse...
...Literature is the vehicle of ideas, of knowledge—unrestricted by the political, religious, or mora] dictates of the majority group of the day...
...Every generation, if it is to grow to maturity and have understanding of man and the universe, must have no limits to its horizons...
...It loses an important social function when it is subjected to the demands of the prevailing morality...
...It assures the opportunity to reform...
...Both the stage and the movies are entitled to the same protection as the lecture platform and the press...
...In 1952, a unanimous Court held that "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments...
...It is indeed the only guarantee that the people will be kept adequately informed to discharge the awesome responsibilities of sovereignty...
...So can the reactionaries and the revolutionaries, those who believe in laissez faire and those who believe in the dictatorship of the proletariat...
...It should extend to every group, large or small, unimportant or influential...
...In our society the search for knowledge must be free and unhampered...
...It remains today a revolutionary concept in most areas of the world, parts of Europe and the Americas not excepted...
...The people are, indeed, the final respository of all power...
...and on the general spirit of the people and of the government," particularly on "legislative discretion...
...The conformists and the nonconformists alike can claim the privilege...
...Pericles said, "The great impediment to action is, in our opinion, not discussion, but the want of that knowledge which is gained by discussion preparatory to action...
...The Progressive will publish a second installment of Justice Douglas' reflections on freedom in the January issue.—The Editors WHEN Khrushchev and Bulganin were visiting England, they met : with Hugh Gaitskell and other Labor Party members...
...In the totalitarian state there is freedom of expression in a limited sense...
...When an author describes in minute detail a way of life, the description itself may be mute criticism of that way of life or the conditions which bring it about...
...But at times the regulation has gone further...
...Under government censorship and control, literature can be reduced to pallid and inoffensive discourses on the status quo...
...Morerover, freedom of expression makes acquiescence in majority rule more likely...
...As a matter of principle the stage and the movies are entitled to the same protection of the First Amendment as other methods of expression...
...Then individuals and groups may be forbidden to obtain radio and television time to express opinions as to the fitness of candidates for political office or to discuss election issues...
...The Jeffersonian faith is that if they are allowed unfettered liberty to accumulate knowledge and in the process even to wallow in trash, if they like, they will acquire the wisdom and ability to manage all of the perplexing and teasing problems of each generation...
...But they had confidence in popular rule and confidence in a Bill of Rights as a restraint on "the tyranny of the legislatures" and as an aid to the judiciary in preventing encroachments on the liberty of the citizen...
...The values represented by their economic, political, racial, or religious interests seem to them to be the expression of the ultimate...
...Then campaign committees may be restricted in expounding their political ideas...
...Those who doubt the thesis that man needs full freedom of expression to realize his utmost capacities and become a cultured citizen of the world need only visit the totalitarian states and see how man has shriveled under the impact of censorship, how poorly he has fared under the diet of one creed...
...As Article 19 of the Declaration of Human Rights of the United Nations states: "Everyone has the right to freedom of opinion and expression...
...The prohibi-tioa extends to private discourse between citizens, public discourse through any channel of communication, or teaching in any classroom...
...If the people are to be wise sovereigns, there must be no restraints or limits on cultural, scientific, artistic, or intellectual endeavor...
...In a state ruled by atheists, religion might be a dangerous subject...
...It is not surprising then to find freedom of expression emerging on this continent as a political right only as the independence movement got under full swing in the latter quarter of the Eighteenth Century...
...Advocates of the abolition of slavery, of economic and social reform, of the pure food and drug laws, have found allies in the authors of fiction...
...It is a constitutional privilege which every person should have, whether he represents business or labor, farmers or financiers, utilities or consumers...
...So long as the sovereign power was in the hands of an hereditary, mercantile, financial, or landowner group, there never was, nor is there today, any freedom of expression...
...It staked everything on unlimited public discussion...
...But ' this criticism and debate do not challenge Communism as a system...
...Until recently, movies were considered outside the protection of the First Amendment...
...The First Amendment does not say that there is freedom of expression provided the talk is not "dangerous...
...My thesis is that there is no free speech in the full meaning of the term unless there is freedom to challenge the very postulates on which the existing regime rests...
...So over the years we developed a different attitude toward it...
...The philosophy of the First Amendment is that man must have full freedom to search the world and the universe for the answers to the puzzles of life...
...They can alter, revise, or undo what they created any time they choose...
...It is, I think, true that freedom of expression is one of the last political rights which people acquire...
...While the compact lasts, the various agencies of government are responsible to the people...
...The classical statement of that position was made by Robert M. Hutchins: "Education is a kind of continuing dialogue, and a dialogue assumes, in the nature of the case, different points of view...
...It placed us on the side of free discussion and advocacy, come what may...
...The First Amendment was a new and bold experiment...
...Lurid sex accounts may trigger a seriously ill psychopath into some kind of action...
...Madison wrote: "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy...
...An appreciation of the arts is often necessary for intelligent law making...
...They too are media for the communication of ideas—at times the most effective of all...
...One need not travel to learn these truths...
...Public opinion—the basis on which our society rests—must be responsible and responsive...
...In Plato's Republic the state would dominate and control education, dictating how literature, poetry, art, music, and even gymnastics are to be taught...
...If it is only necessary that this influence be labeled "undue" to serve as a justification for silencing any person or group, the guarantees of the First Amendment are without substance...
...Criticism fills the papers and magazines of Russia...
...The emergence on this continent of that concept of sovereignty had a special history...
...Freedom of expression is the weapon of the minority to win over the majority or to temper the policies of those in power...
...Yet in both Soviet Russia and Red China, if the discussion goes so far as to question the premise on which Communism rests, it is condemned as counter-revolutionary...
...The public domain includes more than election issues...
...In that search the arts and literature may be more important than the dictionary, the morning newspaper, or the encyclopedias...
...But that is only an indirect way of silencing speakers or putting them on short rations so far as speaking or writing is concerned...
...They cling tenaciously to them and look on the minority with antagonism and suspicion...
...When it comes to elections there is room, of course, for laws penalizing corrupt practices...
...Every majority tends to acquire a vested interest in the status quo...
...On January 16, 1787, he wrote: "I am persuaded myself that the good sense of the people will always be found to be the best army...
...Radio and television time should of course be apportioned so that no one group dominates the air...
...The book is based on the North Lectures Justice Douglas delivered at Franklin and Marshall College in the spring of 1957...
...Unlimited Horizons For Free Expression by WILLIAM 0. DOUGLAS This article by Justice Douglas is adapted from the first chapter of a new book, The Right of the People, which Doubleday ir Company will publish early in 1958...
...A great risk in any age is the tyranny of the majority...
...The basis of our governments being the opinion of the people, the very first object should be to keep that right...
...it broke with tradition, set a new standard, and exalted freedom of expression...
...He becomes a victim of the agencies of propaganda which his government manipulates...
...Without freedom of expression, only some public issues might be convassed...
...For this reason, it is the very cornerstone of the democratic process that all persons and all groups be allowed to express their views of the fitness of the candidate for office and of the issues for which he stands...
...There can be no freedom of expression in the full sense unless all facets of life can be portrayed, no matter how repulsive the disclosures may be to some people...
...and even their errors will tend to keep them to the true principles of their institution...
...This guarantee plays a unique role...
...They recognized the risk of tyranny of the majority...
...Literature performs the important social function of exposing all facets of life...
...And when the movies appeared we did not at first put them in the category of the press...
...For we have a peculiar power of thinking before we act, and of acting too...
...Erskine said that liberty of opinion keeps governments themselves in due subjection to their duties...
...Nor does it permit legislative restraint of freedom of expression so long as the regulation does not offend due process...
...Those who exercise authority must have it recurringly renewed at the hands of the people...
...The theater was not important to that struggle...
...The civilizations which I work and which I am sure every American is working toward, could be called a civilization of the dialogue, where instead of shooting one another when ,you differ, you reason things out together...
...Hamilton had argued against the need for a Bill of Rights...
...Dissatisfaction with existing social, economic, political, and moral conditions can normally be more eloquently expressed in a novel than in a scholarly polemic...
...The horizons of the citizen in the conformity state are so limited he cannot react intelligently to the world around him...
...It is my belief that our First Amendment must be placed in that broad frame of reference and construed to permit even discourse or advocacy that strikes at the very foundation of our institutions...
...As Burke said, "A state without the means of some change is without the means of its conservation...
...Universities should not be transformed, as in Nazi Germany, into loud-speakers for men who wield political power," said the late Professor Chafee...
...But the people did not fully acquire that right until they acquired complete sovereignty...
...And an informed electorate is in turn dependent upon free access to all shades of political opinion...
...There were those who did not trust the people, who felt that government need keep a firm hand on the citizen if the nation was to survive...
...Madison maintained that freedom of the press saved the states from being "miserable colonies" suffering under a foreign yoke...
...But the protection of the First Amendment should not be limited to the orator on a soapbox in a public park...
...Teachers must be allowed to pursue ideas into any domain...
...But it strikes deeper than that...
...And, to be meaningful, the protection of the First Amendment must extend not only to the individual but to all groups in our society...
...But apart from this, no control of utterances through control of expenditures would seem permissible...
...As May wrote in the Constitutional History of England, "Everywhere authority has resented discussion, as hostile to its own sovereign rights...
...But public agencies by force of the First Amendment, which is made applicable to the states by the Due Process Clause of the Fourteenth Amendment, are barred from putting the quietus on any school of thought...
...Moreover, both Jefferson and Madison were convinced that the only wise policy was to keep the market place of ideas unregulated by the government...
...It did not build on existing law...
...Government may not deprive the citizen of any branch of learning nor bar any avenue of research nor ban any type of discourse...
...They may be led astray for a moment, but will soon correct themselves...
...To punish these errors too severely would be to suppress the only safeguard of the public liberty...
...When we talk of freedom of expression, we deal then with one of the fundamentals that is important not only to citizenship at home but to membership in the world community...
...All notions of regulation or restraint by government are absent from the First Amendment...
...The way to prevent these irregular interpositions of the people, is to give them full information of their affairs through the channel of the public papers, and to contrive that those papers should penetrate the whole mass of the peopie...
...disclosure of the person or group financing a candidate can be required...
...A monarchy, oligarchy, or other dictatorship keeps a tight rein on discussion and on the press...
...What is trash or trivia to one may be precious to others...
...That, at least, is the theory...
...He has shown in terms of modern history how freedom of expression across the world is essential if there is to be a viable world community...
...Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives...
...And freedom of expression is as integral a part of the rights of sovereignty as running for office or voting...
...Once that postulate is expressed or implied, discussion and debate go on apace...
...That is one reason why government control over literary standards is so repugnant to Americans...
...It is my view that protection of the First Amendment also extends to the campaign literature, oratory, advertising, and radio and television broadcasts which accompany the modern political campaign...
...It does not say that there is freedom of expression provided the utterance has no tendency to subvert...
...The demands of freedom of expression require government to keep its hands off all literature...
...This freedom of inquiry must be allowed to embrace all realms of knowledge —the arts as well as religion and science...
...Kent Cooper in The Right to Know has shown the stark tragedies that followed in World War I and World War II when governments ran the news cartels...
...Certainly the value of freedom of expression grew in the minds of Americans as the struggle for independence went on...
...The standard essential for us in the management of our internal affairs is also essential in the world community...
...It does not put free speech and freedom of the press in the category of housing, sanitation, hours of work, factory conditions, and the like, and make it subject to regulation for the public good...

Vol. 21 • December 1957 • No. 12


 
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