RETREAT FROM FREEDOM

...this right, and they knew that other minority spokesmen—some of them as hypocritical as Terminiello— would ask the Court to protect their right to express unpopular beliefs...

...The Salvation Army won this battle for posterity in the King's Court in 1880 when it earned the right to parade through London in the teeth of mob opposition...

...To a great many of the Koreans, whose illiteracy rate probably is 'as high as 60%, the political issues inherent in a war are so much mumb»-jumbo...

...He finds himself limited to these alternatives because of the conception he now has of the Court's role...

...No homes, no work, and no food except what they can forage or beg, and they tell you they are bewildered by the havoc created by the war that they never really understood...

...We shall have to watch carefully the enforcement of city ordinances prohibiting disturbances of the peace...

...II Feiner v New York, the third case decided in January, presented the Court with the Terminiello problem on a smaller scale, this time without violence, or even a real threat of violence...

...Black set forth the real and ominous meaning of the decision...

...Rather it was the reaction which it actually engendered...

...Thus it was the policeman's duty to restrain not the speaker but those who would silence him...

...Justices Black, Douglas, and Min-ton disagreed with the majority of the Court, and particularly with its reasoning...

...The current Supreme Court must have looked elsewhere for inspiration when it permitted Syracuse to arrest a man who was speaking neither unlawfully nor wrongfully to an audience that presented neither an imminent danger nor a substantial threat of violence...

...An appeal to the Negro people to "rise up in arms against the whites" was the only statement that by any judicial standard could have been called incitement...

...In the first of these, the State of Maryland was properly rebuked for failing to sustain the claim of a group of Jehovah's Witnesses to the use of a public park for a religious meeting...

...Brave or foolish people have long been legally entitled to speak innocently even when violence is almost certain to result...

...Ten years ago when a proposed CIO gathering in Jersey City was threatened with violence, the Supreme Court ordered that even Frank Hague and his friends in the veterans' organizations could not prevent the meeting...

...By last year he had come to the view that the Court could inquire no further into the merits of legislation than to determine whether it had a rational basis...

...See-Saw in Korea In the past seven months, as the battle line advanced and receded, many Koreans have seen their regimes switch from Syngman Rhee to the Communists, back to Syngman Rhee, back again to the Communists, and now, for the third time, back to Syngman Rhee...

...He said that a procedure which silences the speaker because of the hostile reaction of his audience is an ideal weapon for authoritarianism...

...Today the reaction to the Communist line is not that appropriate to unpopular opinion but to heresy...

...The two policemen who were on hand did not intervene until one man in the audience (accompanied by his wife and two children) told the police, "If you don't get that son of a bitch down from there, I will...

...Terminiello was arrested and found guilty of breaching the peace, an offense that includes (in Chicago) conduct which stirs the public to anger, invites dispute, or creates a disturbance...

...Most people never hear a policeman say, "All right . . . break it up...

...Heckle the speaker, mill around in the crowd...

...Out of this see-saw experience, there seems to have crystallized for many Koreans a highly disillusioned point of view...

...New York Times dispatch from Taegu, by George Barrett...

...This is a notion in direct conflict with our law of free speech...

...He was found guilty of this charge and the New York Court of Appeals upheld his conviction...

...But a public harangue that is clearly wrongful has not been considered unlawful unless the words create, in Holmes' phrase, "a clear and present danger that they will bring about the substantive evils that . . . [the state] . . . has the right to prevent...

...Terminiello, an eager partisan of the Gerald L. K. Smith school of political science, addressed a meeting in a Chicago auditorium...

...Outside the hall a mob of part-time civil liberties enthusiasts hurled stones through the windows...

...If the policeman, unaware of the law, suggests that you behave, hand him a mimeographed copy of Feiner v New York and tell him to get busy...

...go home...

...With this feeling of no love for either side, they are beginning to ask in increasing bewilderment what they themselves can hope to get out of all the killing and destruction, no matter who wins the military victory...

...Feiner, a Syracuse University student, spoke at a street corner, urging people to attend the rally...

...Hardly a soul seemed to be listening when the Court recently announced a doctrine of constitutional law that may well establish a new climate of civil liberties...

...Statements conceded to be lawful have not been thought subject to the Holmes test...

...In the end, the decision is damned most by its encouragement of lawless hoodlums, to whom it lends the aid and support of the cop on the beat...

...Four years ago Jackson affirmed the Court's duty to scrutinize the facts underlying any legislation which tended to restrict civil liberties...

...He remarked at various times: "President Truman is a bum," "the city bosses are corrupt," "the American Legion is a Nazi Gestapo...

...In this view a disgruntled citizen who demands that the mayor be run out of town may be arrested if he is urging an angry mob at City Hall, but not if he is belaboring the passers-by from a soap-box...

...Jackson cast a vote against the minister's right to a speaking permit on the ground that the issue today is constitutional liberty or the national welfare...

...Inside the hall a mob of his supporters cheered his violently anti-Semitic remarks...

...But the Court did not so consider it, and it is thus conceded that nothing Feiner said was unlawful...

...It presents a situation which a liberal court foresaw exactly in setting free the unsavory Father Terminiello two years ago...

...Unpleasant as this may be, it can hardly be compared to the disservice to democracy to which the Feiner case quietly but certainly points the way...

...The majority opinion said that he "was not arrested nor convicted for the making or the content of his speech...

...In the second case, notable only for Justice Jackson's dissent, a Baptist Street Gospel minister won a similar victory...

...But its spokesman was honest enough not to pay this lip-service to traditional free speech doctrines while he repudiated them...

...Slander is the clearest example of speech unlawful in itself and thus beyond the protection of the First Amendment...

...Even more alarming than the Supreme Court's decision to sustain Feiner's conviction was the reasoning on which it was based...

...It permits any 9rouPT^sb government or the local vigila«JW| to suppress the views which tKf group opposes...

...The formula is clear...

...The big question is the stark one of just staying alive...

...The Feiner decision is likely to increase physical violence at public meetings if the word gets around— and ultimately it will—that it is legal to break up a Communist meeting...

...The supporters of Henry Wallace's Presidential campaign were planning a rally in Syracuse...

...The details of that case are worth reviewing in the light of the Court's recent handiwork...

...By stretching the notion of "unlawful" and creating a danger where there was none, the Court might have tortured the clear and present danger theory of restricting unlawful speech into a decision against Feiner...

...He doesn't require in these delicate matters that the legislature be right, but only that it have good reasons...

...The First Amendment, Douglas intimated, is flabby stuff if it protects only speech that doesn't invite dispute...

...The third and most important case shows the prevailing wind to be extremely dangerous in its power and direction...

...but the conditions upon which we grant that he may do so set the real limits to our private rights...

...The police warned Feiner to stop speaking three times and then arrested him for disorderly conduct...

...The Communist platform announced from the North was an enticing one, according to a sampling of farmers, shopkeepers, and refugees . . . but disillusionment set in quickly, according to those who concede they once were prepared to buy what the Communists had in theory to offer...

...This means for most Koreans how to keep from being killed in the fighting, and, succeeding that, how to get enough food and warmth to stay alive...

...Our law has never recognized an absolute right of free speech...

...Today vast numbers of Koreans have nothing left...

...Douglas wrote the Court's opinion, announcing that the Constitution doesn't permit making an offense of conduct which invites dispute...

...This is likely to involve once more the duty to preserve freedom of speech for those who don't believe in it...

...Let us see what facts led up to it...

...But now Murphy and Rut-ledge were gone and a reconstituted Court decided that a speaker may be silenced if there is hostility in the crowd...

...He then appealed to the Supreme Court...

...Men like Justices Douglas and Black and the late Justices Murphy and Rutledge must have had uncomfortable moments in invoking the Bill of Rights to free this vicious man...

...Here is new constitutional law...

...find a policeman, and tell him that in about a minute you're going to knock the speaker off the platform...

...Dislike and distrust of the Communists, with no great love for the South Korea regime...

...But they wanted to secure FRANK LOGUE, a senior at the Yale Law School, has served on the Connecticut Commission on State Government Organization and the Mayor's Committee to Investigate City Government in Philadelphia...

...In January, the Supreme Court decided three free speech cases and in the process supplied enough opinions to show—if one may hazard the phrase—which way the wind is blowing...

...In the typical civil liberties case, the Court states what policemen may and may not do...

...When the Court changes its mind about the conditions that warrant police intervention, we may say, grandly, that an era has ended or, metaphorically, that a new climate of civil liberties is in the offing...

...In ruling on the application of an obscure city ordinance, six of the justices pared down the Bill of Rights more certainly than did all the angry Congressmen who voted for the McCarran Act...