The Fiction of the First Freedom

• Author: Richard L. Sklar
• Published date: 01 June 1953
• Date: 01 June 1953
• DOI: 10.1177/106591295300600206
• Subject Matter: Articles

THE FICTION OF THE FIRST FREEDOM
RICHARD L. SKLAR *
N
1937 PROFESSOR HENRY W. EDGERTON, now Circuit Judge Edgerton of
the Court of Appeals of the District of Columbia, introduced a new
method of appraising judicial review -
in terms of its effect rather than
its dogma.’ He examined every decision from the years 1789 to 1933
in which acts of Congress had been declared invalid by the Supreme Court
in order to determine &dquo;what interests, individual or social, do they protect;
and conversely, whose ox is gored?&dquo;
Judge Edgerton’s investigation revealed, among other things, that judi-
cial review had in no case served to protect &dquo;civil liberties&dquo; from Con-
gressional invasion; that this function of judicial review, which bulks so
large in conventional legal literature, was a popular illusion.2 If we apply
the same method to speech decisions under the First Amendment, and the
Fourteenth as it incorporates the First, it becomes necessary to reconsider
the importance of the First Amendment in American constitutional law.
The present inquiry is limited to United States Supreme Court cases
in which a criminal statute, federal or state, is leveled against political
utterance. Although the Supreme Court does not embody the aggregate of
judicial power, it does exert a controlling influence by example and cor-
rection over state and inferior federal courts. The whole body of law
under the First Amendment either devolves from or exists at the sufferance
of the Supreme Court. Consequently, Supreme Court decisions depict
the tide of events throughout the entire judicial system.
There are, assuredly, several categories of decisions under the First
Amendment which bear an incidental relationship to the problem of
political speech. They include cases in which religious freedom is the
issue;3 cases where the statute is not aimed at speech, but speech enters
incidentally, viz., cases involving picketing,4 cases involving newspapers,5
*New York City.
1
Henry W. Edgerton, "The Incidence of Judicial Control over Congress," Cornell Law Quarterly, Vol.
XXII (1937), p. 299.
2
In one case since that date, United States v. Lovett, 328 U.S. 303 (1946), the Court actually struck
down an act of Congress which invaded the civil rights of three persons.
3

Davis v. Beason, 133 U.S. 333 (1890); Arver v. United States, 245 U.S. 366 (1918); Jones v. Perkins,
245 U.S. 390 (1918); Cantwell v. Connecticut, 310 U.S. 296 (1940); Minersville School District v.
Gobitis, 310 U.S. 586 (1940); West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943);
In re Summers, 325 U.S. 561 (1945); Musser v. Utah, 333 U.S. 95 (1948).
4

Snyder v. Milwaukee, 308 U.S. 147 (1939); Thornhill v. Alabama, 310 U.S. 88 (1940); Carlson v.
California, 310 U.S. 106 (1940); Milk Wagon Drivers Union of America v. Meadowmoor Dairies,
312 U.S. 287 (1941); American Federation of Labor v. Swing, 312 U.S. 321 (1941); Hotel and R.
Employees Inter. Alliance v. Wisconsin Employee Relations Board, 315 U.S. 437 (1942); Carpenters
and Joiners Union of America v. Ritter’s Cafe, 315 U.S. 722 (1942); Bakery and P. Drivers and
Helpers, I. B. T. v. Wohl, 315 U.S. 769 (1942); Cafeteria Employees Union v. Angelos, 320 U.S.
293 (1943); Giboney v. Empire Storage and Ice Co., 336 U.S. 490 (1949); Hughes v. Superior Court,
339 U.S. 460 (1950); Building Service Employees International Union v. Gazyam, 339 U.S. 532
(1950); International Brotherhood, E. W. v. National Labor Relations Board, 341 U.S. 694 (1951).
5
A tax discriminatory toward certain newspapers was held invalid in Grosjean v. American Press Co.,
297 U.S. 233 (1936); newspapers were held to be subject to the National Labor Relations Act in
302

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303
cases involving public employment,6 or a disclaimer of membership in
certain organizations as a condition of public offices or employment,7 cases
involving the use of the mails,8 cases on labor and employment,9 and cases
involving representation before the National Labor Relations Board;’° cases
involving statutes which impose a burden or restraint, prior or otherwise,
upon speech whose content is or may be legal, viz., on newspapers,&dquo; as a
license or other restriction on canvassing or on the distribution of hand-
bills, 12 or in the form of licensing of communication; 13 cases involving the
form of communication rather than the content of the utterance cases
turning on the use of public facilities;l5 cases where the utterance is non,
political and may or may not be a misdemeanor;’ cases involving contempt
of court; 17 cases involving the naturalization laws and cases involving
deportation statutes.l9
However, these cases are not conclusive on the question of prohibited
political utterance, and are therefore excluded from this investigation,
where the sole concern is with freedom of political speech. Since the
question first confronted the Supreme Court in 1919, twenty-one cases
involving political utterance have been reviewed. Ten of these deal with
the advocacy of illegal conduct in wartime. They may be classified thus.
Associated Press v. N. L. R. B., 301 U.S. 103 (1937); to the anti-trust laws in Associated Press v.
United States, 326 U.S. 1 (1945); and to the Fair Labor Standards Act in Mabee v. White Plains
Publishing Co., 327 U.S. 178 (1946); Oklahoma Press Publishing Company v. Walling, 327 U.S.
186 (1946).
6
United Public Workers v. Mitchell, 330 U.S. 75 (1947).
7

Getende v. Board of Supervisors of Elections, 341 U.S. 56 (1951); Garner v. Board of Public Works,
341 U.S. 716 (1951); Wieman v. Updegraff, 73 S. Ct. 215 (1953).
8

Re Jackson, 96 U.S. 727 (1878); Re Rapier, 143 U.S. 110 (1892); Horner v. United States, 143 U.S.
207 (1892); Lewis Publishing Company v. Morgan, 229 U.S. 288 (1913); United States ex rel.
Milwaukee Social Democratic Publishing Co. v. Burleson, 225 U.S. 407 (1921); Leach v. Carlile,
258 U.S. 138 (1922); United States v. Ballard, 322 U.S. 78 (1944); Donaldson v. Read Magazine,
Inc., 333 U.S. 178 (1944).
9

May Dept. Store Co. v. N. L. R. B., 326 U.S. 376 (1945); United States v. Congress of Industrial
Organizations, 335 U.S. 106 (1948); Lincoln Federal Labor Union, A. F. L. v. Northwestern Iron
and Metal Co., 335 U.S. 525 (1948); International Union U. A. W. v. Wisconsin Employment
Relations Board, 336 U.S. 245 (1949).
10

American Communications Association v. Douds, 339 U.S. 382 (1950).
11

Patterson v. Colorado, 205 U.S. 454 (1907); Near v. Minnesota, 283 U.S. 697 (1931).
12

Lovell v. Griffin, 303 U.S. 444 (1938); Schneider v. Irvington, 308 U.S. 147 (1939); Valentine v.
Christensen, 316 U.S. 52 (1942); Jones v. Opelika, 316 U.S. 584 (1942); Jamison v. Texas, 318
U.S. 413 (1943); Largent v. Texas, 318 U.S. 418 (1943); Murdock v. Pennsylvania, 319 U.S. 105
(1943); Martin v. Struthers, 319 U.S. 141 (1943); Douglas v. Jeannette, 319 U.S. 157 (1943); Prince
v. Massachusetts, 321 U.S. 158 (1944); Follett v. McCormick, 321 U.S. 573 (1944); Marsh v.
Alabama, 326 U.S. 501 (1946); Tucker v. Texas, 326 U.S. 517 (1946); Breard v. Alexandria, 341
U.S. 622 (1951).
13
Mutual

Film Corp. v. Industrial Commission of Ohio, 236 U.S. 230 (1915); Mutual Film Corp. v.
Hodges, 236 U.S. 247 (1915); Cantwell v. Connecticut, 310 U.S. 296 (1940); National Broadcasting
Company v. United States, 319 U.S. 190 (1943); Thomas v. Collins, 323 U.S. 516 (1945); United
States v. Paramount Pictures, 334 U.S. 131 (1948).
14
Saia v. New York, 334 U.S. 558 (1948); Kovacs v. Cooper, 336 U.S. 77 (1949).
15

Davis v. Massachusetts, 167 U.S. 43 (1879); Hague v. Committee for Industrial Organization, 307 U.S.
494 (1939); Snyder v. Milwaukee, 308 U.S. 147 (1939); Cox v. New Hampshire, 312 U.S. 569
(1941); Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951).
16

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Winters v. New York, 333 U.S. 507 (1948).
17

Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918); Bridges v. California, 314 U.S. 252
(1941); Pennekamp v. Florida, 328 U.S. 331 (1946); Craig v. Harney, 331 U.S. 367 (1947); Fisher
v. Pace, 336 U.S. 155 (1948); Maryland v. Baltimore Radio Show Inc., 338 U.S. 912 (1950).
18 United States v. Macintosh, 283 U.S. 605 (1931).
19 United States ex rel. Turner v. Williams, 194 U.S. 279 (1904); Bridges v. Wixon, 326 U.S. 135 (1945).

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304
The convictions of two German sympathizers during World War I
were affirmed .20
The convictions of two German sympathizers during
World War II were reversed.21 The conviction of one sectarian who dis-
credited the allied cause without approving the German cause during
World War II was reversed.22 The convictions of two Socialists and a
pacifist who were charged with advocating opposition to the recruiting
service during World War I were affirmed .21 The convictions of one
Socialist and one anarchist charged with attempting to interfere with
military operations against Germany during World War I were also
affirmed. 24
Of the eleven peacetime cases, six involved Communists, two involved
members of the Industrial Workers of the World, two involved &dquo;right-
wing&dquo; racists, and one involved a speaker for the Progressive party in 1948.
In two of these, the convictions of Communists charged with advocating
revolution were affirmed.25 The convictions of one Communist and one
member of the I.W.W. for indorsing nonrevolutionary illegal conduct were
affirmed.26 The convictions of three Communists and one member of the
I.W.W. were reversed because they did not advocate illegal...