'Lord Monboddo' and the Supreme Court

...He does not believe it possible for a state to be so inflamed by press or radio as to prejudice a man's right to a fair trial...

...He is like Lord Monboddo rather than like Rousseau...

...It does not seem to have occurred to Justice Black that words, as distinct from unspoken thoughts, are a class of actions, and that under some circumstances the consequences of words on the structure of our freedoms may be equally as fateful as other types of action...

...Very often motions for a change of venue are granted, among other reasons, on the ground that press reports have been prejudicial to the defendant...

...Italics in original...

...But is not the right to life more precious than the right to property and the right to speech...

...The effects of the shout depend almost entirely upon the meaning of the words shouted...

...Yet everyone knows how jealously the rights of a defendant in a criminal case are safeguarded in England...

...The second elementary difficulty with the doctrine of absolute rights, however, is insuperable...

...It, too, is only a matter of words, not of actions...

...Not only does he hold— by a remarkably original feat of constitutional reinterpretation—that the First Amendment forbids all libel or defamation laws, but he asserts that since the First Amendment was made applicable to the states by the Fourteenth, this should be the general rule valid everywhere: "I have no doubt that the provision [the First Amendment] as written and adopted, intended that there should be no libel or defamation law in the United States under the United States Government, just absolutely none so far as I am concerned . . . "My belief is that the First Amendment was made applicable to the states by the Fourteenth...

...Fortunately, the editor has opened and closed the collection with two statements of Black's views...

...For Justice Black would strip American citizens of any legal protection against every form of slander, libel and defamation, no matter how grave and irreparable the consequent damage to life, limb, property and reputation...

...Justice Black is under the illusion that his doctrinaire extremism is a bulwark of our freedom, especially of the strategic freedoms of the Bill of Rights...

...The more important the recognition of these facts is to the intelligent defense of human liberty, the more dangerous these dogmas become...

...He agrees with Madison that "trial by jury along with freedom of the press and freedom of conscience [are] the three most highly cherished liberties of the American people...

...In this respect, rights are like the obligation to keep a promise...

...If only one man remains unprejudiced by an incendiary editorial urging that a defendant be legally lynched, does that mean that a fair trial is possible...

...In developing their doctrine of "clear and present danger" as a rule which governs limitations on speech and press, Justices Holmes and Brandeis were wont to use some specific illustrations which have until now seemed very plausible to common sense...

...We have a system of property in this country which is also protected by the Constitution . . . "That is a wonderful aphorism about shouting 'fire' in a crowded theatre...

...It runs counter to the humane legal tradition which allows truth to be a legitimate defense in a civil action for damages, but refuses to accept even the truth as a legitimate defense in an action for criminal libel if it can be shown that the charge was made with a malicious intent which served no good public end...

...I believe," he wrote, "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...

...Black explains: "Nobody has ever said that the First Amendment gives people a right to go anywhere in the world they want to go or say anything in the world they want to say...

...In contrasting the kinds of nonsense both of them talked, Samuel Johnson once remarked to Boswell: "Why, Sir, a man [Rousseau] who talks nonsense so well, must know that he is talking nonsense...

...The truth is that if his views became the law of the land, and the citizens of our republic could libel and slander each other with complete impunity, democratic self-government would be impossible and the entire structure of our freedoms would go down in dust and turmoil...

...Justice Black refuses to admit the possibility that freedom of speech may conflict with the right to a fair trial...

...Justice Black apparently would limit freedom of speech only when its expression is a trespass on private property...

...If a person creates a disorder in a theatre, they would get him there not because of what he hollered but because he hollered...

...One can, of course, knowingly shout many things in a theater that are false without incurring the penalties which would follow on the normal consequences of falsely shouting something that would cause a riot...

...Justice Black, however, is proud of his absolutism with respect to the Bill of Rights...

...A newspaper often has state-wide circulation, and a radio station frequently reaches an audience in every village and hamlet in a state...

...They are forceful expressions of Justice Black's basic philosophy, and are highly commendable for their frankness...

...They should give especial pause to those who believe it is possible to make absolutes out of any particular freedom, or, in other words, who wish to be liberal without being intelligent...

...The law would be an ass if it failed to take account of what a person shouted...

...The starting point of his public colloquy is the emphatic reassertion that "there are 'absolutes' in our Bill of Rights and that they were put there on purpose by men who knew what words meant and meant their prohibitions to be 'absolutes...

...author, "The Paradoxes of Freedom" "The most important thing about a judge...

...To which Justice Black replied affirmatively but not for the reasons Holmes gives...

...The first difficulty is that it makes intellectually incoherent the acceptance of certain laws whose justice is acknowledged even by alleged believers in absolute rights...

...On the other hand, a truthful shout of "fire," even if it were unwise, would not be actionable...

...Those who make an absolute of the free exercise of religion or any other right will not necessarily be brought up short by the realization of the absurdity of their position if they are prepared to swallow all its consequences...

...Since Black insists upon his words being taken in the same literal sense with which he believes he interprets the words of the Constitution, readers whose minds have not been drugged by rhetoric will find his views startling both for their intellectual simplicity and practical extremism...

...I do not think myself," he says, "that anyone can say there can be enough publicity completely to destroy the ideas of fairness in the minds of people, including judges...

...It outrages the moral sensibility of those who believe that their good name or honor "is the immediate jewel of their souls," more precious to them than the size of their purse...

...For most judges it is only when the texts and resources of the law, the rules of evidence, and the facts in the case are insufficient to point clearly to a decision that what Holmes called "can't helps," and Freund "ultimate convictions or values," show themselves—and even then by indirection...

...This means, finally, that if a racist and anti-Semite not merely accused Jews as a group of ritual blood murder but accuses a specific Jew of the ritual blood murder of a missing non-Jewish child, or a specific Negro of a specific unsolved crime against a white, and the Jew or Negro suffers acutely in consequence, there can be no redress at law against this criminal and wicked libel...

...The law would be doubly asinine if it treated shouts of "fire" merely as forms of disorderly conduct whether or not there was a fire, and independently of the intent of the shouter...

...Very well...

...The illustration has become a paradigm case of the kind of speech which is not legally protected and morally should not be...

...For example, the First Amendment forbids the making of any law "prohibiting the free exercise" of religion...

...If panic and death resulted from a knowingly false shout of "fire," say in order to facilitate pickpocketing or to get "kicks" out of watching the frenzied rush to safety, the malefactor might be subject to a charge of manslaughter...

...Black's reply to the question is that this never occurs...

...Which right should yield...

...In cases of actual conflict he would rule, apparently on purely a priori grounds, that the right to speech or press must be upheld whatever its consequences for other rights, especially the right of an individual not to be prejudged by his judges...

...For theoretically the absolutist of religious freedom can always abandon his rejection of inhuman or morally objectionable religious practices and in principle declare for the toleration of any religious practice...

...Or suppose, to relate the discussion to Justice Black's own text, that freedom of speech or press conflicts with a man's right to a fair trial...

...When that happens, which of the two freedoms in conflict should be abridged...

...The wisdom of the law has no place for complete or final or absolute proof in matters of this sort...

...and if it be dangerous for him to have one, it is at all events less dangerous than the self-deception of not having one...

...One of the commonest experiences in life is the conflict of rights...

...Justice Black's friendly questioner, Professor Edmond Cahn, with this paradigm case in mind, asked him: "Would it be constitutional to prosecute someone who falsely shouted 'fire' in a theatre...

...It is only a matter of words, not of actions, says Justice Black...

...Suppose someone falsely shouted "fire," not in a theater but in a church or school or a public place where there is no question of the right of property...

...Black's reply seems blithe as well as irrelevant because it substitutes his subjective impression for an entire encyclopedia of authenticated facts in legal history...

...Black has no use for the doctrine of "clear and present danger," but he recognizes one of Holmes' illustrations as a challenge to his position...

...This creates another difficulty for him even more obvious and formidable than the ones we have considered...

...No one can read this collection of Justice Hugo Black's opinions without becoming aware of the overriding importance of his philosophy...

...And if what a person hollers is irrelevant but the mere fact that he hollered justifies prosecution, suppose he hollers "fire" in a crowded theater, and it is true...

...An idea becomes a dogma when it blinds one to the facts of experience...

...One wonders what has happened to the right of property previously recognized by Black...

...Cicero somewhere asserts that there is no absurdity to which some human beings will not resort to defend another absurdity...

...The second is the verbatim text of his answers to questions put to him by an admiring interlocutor in a public interview...

...There is a fire...

...Note the use of the word "completely...

...It is sufficient to reach conclusions that are beyond reasonable doubt...

...Neither the press nor the radio feels muzzled because its freedom to comment on a criminal case before the verdict is rendered is not absolute...

...One or more persons may be unprejudiced and yet every person on the jury as well as the judge may have been profoundly influenced by tendentious press or radio reports...

...If we disregard the meaning and intent of what a man hollers, none of these distinctions can be drawn...

...Buying theatre tickets did not buy the opportunity to make a speech there...

...Justice Black explicitly states that he wants "both fair trials and freedom of the press...

...The most charitable interpretation of Black's own words is that he does not understand their meaning...

...Even if we did not know of a situation in which a conflict like this has arisen, we could easily conceive of one...

...I think his reply is irrelevant because it avoids giving a direct answer to the hypothetical question...

...Here again it is only a matter of words, not of actions...

...Most jurists are very sensitive to the charge of absolutism, for an absolutist, like a fanatic, is one who refuses to test his principles in the light of reason and experience, and explore alternatives to what may be no more than arbitrary prejudices tricked out as self-evident axioms or convictions...

...The English public is far freer from racial, religious and sectional prejudice than the American public...

...His opinions follow from them almost automatically...

...It recognizes that even when a man's very life is at stake we cannot forego reaching a verdict merely because the conclusion is less than certain...

...But if rights are absolute how can there be more than one of them...

...Suppose the right to speak interferes, as it very well might, with the free exercise of someone else's religion—which one must be abridged...

...Holmes' rule limits freedom of speech when it incites to illegal violence or when it threatens life, as does the false cry of "fire" in the theater...

...Indeed, the implications of Black's articulated philosophy are so terrifying that if it were to prevail, the entire structure of human freedom would be more seriously undermined than if the legislative measures he deplores were multiplied a thousand times over...

...The first is a lecture on the Bill of Rights...

...This means that if one falsely charges a person in a position of trust with being an embezzler, or charges a scholar with plagiarism, or a teacher with perverse abuse of his students or an official with handing over secret documents to enemy agents, or a nurse with poisoning a patient (to mention only a few notorious cases in recent years), and that as a consequence of these false and malicious charges the innocent person's professional life has been ruined, the victim can have no redress from the calumniator...

...Would the shout then be privileged...

...Such a man would be prosecuted, he asserts, "not because of what he shouted but because he shouted...

...I do not hesitate, so far as my view is concerned, as to what should be and what I hope will sometimes be the constitutional doctrine that just as it was not intended to authorize damage suits for mere words as distinguished from conduct as far as the Federal Government is concerned, the same rule should apply to the states...

...It may be instructive to examine the assumptions from which Justice Black derives his position...

...But I am afraid Monboddo does not know that he is talking nonsense...

...It is more in evidence than judicial reasoning based on legal principle and precedent...

...For in that case it could not distinguish between the man who shouted "fire" falsely and one who shouted "fire" when there really was one...

...Yet he has another surprise in store for us...

...There are many cases in which there can be no reasonable doubt that the press treatment of a crime and of a suspect has prejudiced the defendant's right to a fair trial...

...What can be established "completely" in law or life...

...As everyone knows, some religions involve morally objectionable practices ranging from polygamy to human sacrifice, all of which are forbidden by law...

...Professor Paul Freund has wisely observed, "is his philosophy...

...Were Black's position to become the dominant view of the United States Supreme Court, its effects on the already irresponsible practices of the sensationalist press in reporting criminal cases would be fearful to contemplate...

...All of this goes four-square against the grain of Anglo-American law, which permits not only a civil suit for damages if a man has been libelled but sometimes also a criminal prosecution...

...It is a fair inference from his dissenting opinion in Yates vs...

...Despite the absurdity of Justice Black's attempt to square his position with the judgments of common sense, he seems unaware of the fact that he has breached the absoluteness of the right to speak when its exercise interferes with the right to property which, as he reminds us, is also protected by the Constitution...

...If promises conflict, how can we believe that all promises must be kept...

...Would Black hold that he should be arrested for creating a disturbance, that what he shouted was irrelevant...

...In his famous opinion in Schenck v. VS., Holmes wrote: "The most stringent protection of free speech would not protect a man in falsely shouting 'fire' in a theatre, and causing a panic...

...But we do not have to conceive of such a situation as if it were merely a fancied possibility...

...Nonetheless, his altogether unconvincing attempt to explain away the conflict reveals that despite what he says, he does not believe in the absolute right to a fair trial...

...Now there are obvious and elementary difficulties with the notion of rights being so absolute that they can never be legitimately abridged...

...But you do not have to shout 'fire' to get arrested...

...What happens when a newspaper publishes, or a station broadcasts, so highly inflammatory an account of a crime and of an arrested suspect that it prejudices the latter's right to a fair trial by a jury...

...One would imagine that with these remarks Black has reached the limits of doctrinaire extremism...

...This difficulty in the absolutists' position, although formidable, is not insuperable...

...But it does no such thing...

...If views such as these were held by a judge of an inferior court, they could be dismissed as a quaint peccadillo...

...The very foundations of civil society—and not merely of democratic society, whose viability depends more than any other on certain standards of public virtue—would collapse if speech which falsely charged citizens with murder, theft, rape, arson and treason was regarded as public discussion and hence privileged under the law...

...In Justice Black's opinions, however, his "can't helps" lie on the surface...

...Simple consistency would require absolutists to deny to Congress or any other legislative body the right to proscribe the exercise of such religions...

...This means, also, that if one falsely charges that the butcher or grocer is using dishonest scales or selling deceptively packaged meat and foodstuffs which have been officially condemned as unfit for human consumption, and that in consequence an honest merchant suffers irreparable damage, he cannot sue the architect of his ruin...

...This is a permanent contribution to the humor of the law...

...No one is arrested for disorderly conduct for shouting barefaced lies about the great talent or beauty of the performers...

...A trial is unfair even if only some member or members of a jury have been prejudiced by what they have read...

...United States that he would not penalize speech about a public issue which incites to an illegal action like lynching...

...But as far as I know all absolutists, on the bench or off, approve of these laws...

...When they are held with passionate conviction by a distinguished and influential Justice of the highest court in the land, a Supreme Court which often functions as a third legislative body, they should be a cause of grave concern to all who cherish the ideals of multiple freedoms under law...