Too Much Free Speech?:

...Another facet of the great dilemma arose when a suspended priest spoke in a Chicago auditorium under the auspices of Gerald L. K. Smith and the Christian Veterans of America...

...As the Virginia Assembly said in 1785, in its 'Statute for Religious Liberty' written by Thomas Jefferson, 'It is time enough for the purpose of civil government, for its officers to interfere when principles break out into overt acts against peace and good order.' " In his great pilgrimage for freedom, Black seems to have left Holmes and Brandeis (the authors of the danger test) in favor of Jefferson and Meiklejohn...

...The traditional solution is simply this: A legislative measure must be sustained unless the judges are prepared to hold that no reasonable man could support it...

...The real issue is not the relative importance of free expression, but the role of "independent" judges in a democratic society...

...A trial is not a 'free trade in ideas,' nor is the best test of truth in a courtroom 'the power of a thought to get itself accepted in the competition of the market.' A court is a forum with strictly defined limits for discussion...

...Thus, a judge on the highest bench must be more than an impartial arbiter of conflicting interests...

...Many liberals who used to criticize the Court's aggressiveness in economic matters, now want it to be aggressive in the realm of civil liberty...

...The great difficulty is that the Constitution does not tell us which words in what contexts are protected and which are not...

...If Black's wisdom is the wisdom of the great idea, theirs is the wisdom of experience...

...All post-1936 appointees to the Supreme Court have respected the "reasonable man" approach in cases involving merely economic interests...

...Outside the auditorium a large crowd—Communistled, according to the priest—milled about in open hostility...

...nor is it when nothing more than overt action is at stake...

...Charging Democrats, Jews and Communists with a common conspiracy, it reeked with racial hatred...

...Somewhere between these obvious extremes lies the boundary between protected and unprotected utterance...

...It is essentially an effort to ascertain the boundaries of propriety as fixed by "the views and feelings that may fairly be deemed representative of the community as a continuing society...

...In short, when they find room for doubt and disagreement among reasonable men "humilitarian" judges cannot bring themselves to veto honest governmental efforts to preserve peace and order...

...To what extent should judges restrain themselves—with Frankfurter—lest they hamper the growth of the more democratic devices of responsibility, discipline and self-confidence...

...At minimum, in other words, any legislative act brushing upon them would lose the customary presumption of validity...

...We cannot read [freedom of the press] into the Fourteenth Amendment and at the same time read out age-old means employed by states for securing the calm course of justice...

...Obviously, then, close cases—those most apt to go to the Supreme Court— entail an element of choice, or more crudely, of lawmaking...

...Consider, for example, the constantly recurring problem of a newspaper that puts pressure upon judge or jury in pending litigation...

...The talk, according to Justice Robert Jackson—just back from the Nuremberg trials—"followed with fidelity that is more than coincidental, the pattern of European Fascist leaders...

...Others contend that Black and his followers are so overcome by the glory of the First Amendment that they are insensitive to the less glamorous aspects of popular government...

...These decisions in the Wilkinson and Braden cases checked what many felt to be a trend toward absolute protection of freedom of speech...

...This is the oldest, most basic and most tantalizing problem in American constitutional law—and of course it is not confined to cases arising under the Bill of Rights...

...Here Wallace Mendelson, professor of government at the University of Texas and author of the recently published Justices Black and Frankfurter: Conflict in the Court, discusses how the two men arrived at their positions...

...This is the great issue on which the "new" Supreme Court has been so deeply divided...

...By 1957, in the Yates case, he had combined these two approaches with a repudiation of the 1945 view that permitted restraints upon incitement involving "clear and present danger...

...For most judges the quandary in utterance cases is that they usually entail mixed elements of discourse and violence, and often more as well...

...Like Frankfurter, he could not believe that such tactics constitute the free discussion that the First Amendment contemplates...

...Sporadic violence resulted in the smashing of some doors and windows before the police could establish order...

...Jackson saw in this episode a struggle between "totalitarian groups" for what the Nazis called "the conquest of the streets...

...Here are judicial views to match the democratic dream...

...Conversely, it would seem that, while judges are not to be trusted very far with material interests, they are highly reliable vis-à-vis the First Amendment...

...He said: "I believe that the First Amendment forbids Congress to punish people for talking about public affairs, whether or not such discussion incites to action, legal or illegal...

...In this view, apparently, the people are somehow better qualified to make good the fateful vagueness of the Constitution in the area of economics than in the area of personal freedom...

...The U.S...

...Supreme Court, in two bitterly contested 5-4 decisions, recently upheld the right of the House UnAmerican Activities Committee to inquire into a witness' Communist affiliations...

...No one would argue, for example, that "freedom of speech" includes raucous sound-truck polemics disturbing to the patients in a hospital, fraudulent misrepresentation of one's age for draft purposes, or (to borrow from Justice Oliver Wendell Holmes) falsely shouting "fire" in a dark and crowded theater...

...The American people have regained freedom to determine their own economic policies with little or no judicial interference...

...So to assure the impartial accomplishment of justice is not an abridgment of freedom of speech or press, as these phrases of liberty have hithertofore been conceived even by the stoutest libertarians...

...When only open discussion is involved, decision is not difficult...

...In such contexts, Frankfurter's wing of the Court finds the First Amendment somewhat less than clearly self-defining...

...This was Black's view in 1945...

...They want speech and press to have the same special immunity from the reasonable-man rule that "property" enjoyed in the old days...

...The British avoid this problem in large measure by leaving the "interpretation" of their Constitution to Parliament...

...His job entails the exercise of political power in the broadest sense without commensurate political responsibility...

...it is absolutely invalid...

...Some insist that Frankfurter and his followers have missed the true significance of the fundamental freedoms...

...Yet what is left of democracy if we do not trust its fundamental entirety—if we are not prepared to allow even those of its fruits that are not beyond debate by reasonable men to remain inviolate...

...It comes to this: How can democracy live, if its fundamentals are not protected...

...This means in essence that if a constitutional issue is not free of doubt, if the challenged measure reflects a choice on which reasonable men may be divided, courts shall not interfere...

...Let men hear and read all that can be said on every side of every issue and self-government can be trusted to take care of itself...

...To cry "fire" falsely when one is alone on a desert island is one thing: to do so in Holmes' crowded theater is another...

...In fact, these liberties themselves depend upon an untrammeled judiciary...

...That battle has now been won...

...The Supreme Court is no longer the constitutional arbiter of economic policy...

...Both views, I think, are wide of the mark...

...The argument over how much protection to give freedom of speech from governmental interference has divided the Court into two factions, one headed by Felix Frankfurter and the other by Hugo Black...

...By Wallace Mendelson Despite the categoric language of the Bill of Rights, no past or present member of the Supreme Court (and none of the great commentators) has ever suggested that it gives anyone an absolute right to say or publish whatever he might choose at any time or place...

...He must be prepared in doubtful cases to face what Holmes called the "sovereign prerogative of choice...

...But in both instances men, not law, make the ultimate decisions—subject always to the will of the people, as expressed in British elections or, in this country, in constitutional amendments...

...The struggle has now shifted to another quarter...

...All of the "new" Justices recognize that the "old" Court abused its authority...

...It leaves such matters for settlement by the democratic process...

...Indeed, such an act apparently would be presumed invalid and could be sustained only in the gravest circumstances to forestall a "clear and present danger...

...For how can we know what is good or had, right or wrong, unless we have unfettered freedom to test our thoughts against the thoughts of others...

...Where shall they look for light when the Constitution leaves room for doubt...

...That is why the Court is always at, or near, the storm center of American politics...

...How far should the Court go—with Black—in forcing Jeffersonian freedom upon us (as the "old" Court imposed Hamiltonianism...

...Of course, a free press is indispensable to the democratic way of life, but so is the right to a fair trial...

...All of them have recognized that their function is not to override democracy but to support it...

...Some day, perhaps, we may have to choose between them...

...It follows that no legislation has been struck down on laissez-faire grounds since the crisis of the mid-1930s...

...To put it oversimply: Should a court try to save the people from themselves (if only in a limited area), or should it let them achieve the strength that grows with the burden of responsibility —the wisdom that comes with self-inflicted wounds...

...Yet Black's 1945 position suggests that any effort to restrain trial by newspaper in favor of trial by jury is presumptively invalid...

...This is the approach for which Holmes and Louis Brandeis fought so vigorously when most of their colleagues found in laissez faire a standard for judging— and invalidating—minimum wage, maximum hour and other social welfare legislation...

...The [Constitution] does not forbid a state to continue the historic process of prohibiting expressions calculated to subvert a specific exercise of judicial power...

...We have no solution unless it be this: We usually manage to have both attitudes represented on the bench...

...By 1950 he favored absolute freedom for all utterance not coupled with illegal action...

...It would be foolhardy to suggest that Black's colleagues believe any less deeply than he does in the principle of free expression...

...The difference is startling in operation...

...His latest position goes further...

...How shall our judges exercise their fateful power...

...A year later he seemed to shift to Alex, ander Meiklejohn's position: unqualified freedom for all utterance "in the realm of public matters...

...The great difficulty in these cases, like most First Amendment cases that reach the Supreme Court, is that they present hybrid problems...

...By hypothesis the newspaper is dealing with a "public matter" and since its coverage is not coupled with illegal action, any restraint by the state is not merely presumptively...

...Since the Constitution does not locate the dividingline for us, some mortal agency must...

...They entail more than the mere expression of ideas, yet less than outright illegal action...

...The rationale is plain: Doubt shall be resolved not by "independent" judges but, by the elected branches of government, answerable directly to the people...

...Justice Felix Frankfurter put the opposing position in these terms: "Our whole history repels the view that it is an exercise of one of the civil liberties secured by the Bill of Rights for a powerful metropolitan newspaper to attempt to overawe a judge in a matter immediately pending before him...

...Justice Hugo Black is the chief spokesman for the view that would give freedom of speech and the press a "preferred place...

...Reference to the "reasonable man" in this context is an effort by the hard-pressed judge to discount his own merely personal values in favor of a more objective, outside standard...

...Most of them, however, are perhaps a bit less moved by democratic dreams than by democratic realities...

...The great dilemma has been how best to do this...