The Supreme Court as Protector of Civil Rights: Freedom of Expression

AuthorDavid Fellman
Published date01 May 1951
Date01 May 1951
Subject MatterArticles
The Supreme Court as Protector of Civil Rights:
Freedom of Expression
First Amendment to the Con-
ments of free speech by either the state
1 stitution of the United States pro-
or federal government are reviewable in
vides that &dquo;Congress shall make no law
the United States Supreme Court; free
... abridging the freedom of speech,
speech is not absolute. It is hazardous
or of the press.&dquo; As for the states, in
venture additional generalizations.
1925, in the Gitlow case,’ the Supreme
The justices have never agreed in the
Court held for the first time that the
past, nor do they agree today, on any
&dquo;liberty&dquo; which states are forbidden to
single theory or doctrine, or even upon
deny by the due process clause of the
any collection of words and phrases,
Fourteenth Amendment includes free-
with which to dispose of cases present-
dom of speech.2
Ever since then the
ing free speech issues.
justices have agreed that federal re-
It can safely be said that some deci-
view is available as to state actions
sions are favorable to free speech and
which infringe upon free speech. All
some are unfavorable.
It is also pos-
of the justices have always agreed, also,
sible to study the cases chronologically
that freedom of speech, like all other
and note that a more or less libertarian
freedoms, is not absolute, and that at
spirit prevails in the Court in different
some point and for some purposes, gov-
periods of time. For after all, Mr.
ernment may validly impose limitations.
Dooley was stating a sheer truism.when
&dquo;All agree,&dquo; Justice Reed has pointed
he noted that the judges follow the elec-
out, &dquo;that there may be reasonable reg-
tion returns. Of course, what he meant
ulation of the freedom of expression.&dquo; 3
was that judges are responsive to the
The free speech cases assuredly sup-
dominant trends of thought and emo-
port these two generalizations: infringe-
tion, hopes and fears, which pervade the
Gitlow v. New York, 268 U. S. 652 (1925).
society of which they are a part. In
An unsuccessful attempt was made in Hague
periods of great popular tension, judges
v. C.I.O., 307 U. S. 496 (1939), by three
also are tense.
justices, to establish the proposition that free
speech, at least in the measure that national
legislation is being discussed, is a privilege or
immunity of a citizen of the United States
Justices Holmes and Brandeis at-
which states may not invade.
tempted to formulate a reasonable the-
Justice Harlan thought so many years
ory by which to determine the point at
previously. See his famous dissenting opinion
in Patterson v.
government may interdict
Colorado, 205 U. S. 454, 463
in a series of cases
arising under the
Dissenting in Martin v. City of Struthers,
Espionage Act of 1917 immediately fol-
319 U. S. 141, 155 (1943). Chief Justice
lowing the First World War. In the
Vinson wrote last year: "Freedom of speech
does not
case,4 the first to reach the
comprehend the right to speak
on any subject at any time"—American Com-
Court, Justice Holmes declared: &dquo;The
munications Association v. Douds, 339 U. S.
question in every case is whether the
382, 394 (1950). In Near v. Minnesota, 283
words used are used in such circum-
U. S. 697, 708 (1931), Chief Justice Hughes
stances and, are of such a nature as to
declared: "Liberty of speech, and of the press,
is also not an absolute right, and the State
Schenck v. United States, 249 U. S. 47, 52
may punish its abuse."

create a clear and present danger that
danger upon which government may
they will bring about the substantive
premise a conviction.&dquo; Nor did these
evils that Congress has a right to pre-
two justices question the constitutional-
vent. It is a question of proximity and
ity of state criminal anarchy and anti-
degree.&dquo; In another case decided in the
syndicalism laws, whether they dis-
same year, Justice Holmes stated his
agreed with the Court’s affirmance of a
position in these words:
conviction 9 or concurred.10 What Jus-
tices Holmes and Brandeis tried to dc
I think that we should be eternally vigilant
was to give sympathetic prosecutors
against attempts to check the expression
judges, and juries a working principle
of opinions that we loathe and believe to be
which in concrete situations would mil-
fraught with death, unless they so im-
itate in favor of allowing speech the
minently threaten immediate interference
with the lawful and pressing
possible latitude.
purposes of
the law that an immediate check is re-
Dissenting views
quired to save the country.5
Not all members of the Court, how-
It is important to note, however, that
ever, have shared the enthusiasm of Jus-
Justices Holmes and Brandeis never
tices Holmes and Brandeis for the clear
used the clear and present danger doc-
and present danger doctrine, or have
trine for the purpose of declaring a
been willing even to pay lip service to
federal or state statute unconstitutional.
it. In the three speech cases mentioned
In every case, all they argued was that
above in which Justices Holmes and
a particular defendant’s words do not
Brandeis dissented, the authors of the
justify a conviction unless in actual fact
majority opinions, while not rejecting
they create a clear and present danger of
the doctrine, paid no attention to it.’’-
a serious evil for which punishment is
A few years later, in the Gitlow caste, 1-2
permissible.6 They never suggested that
Justice Sanford discussed the clear and
the Espionage Act of 1917 was uncon-
present danger theory, reduced its pro-
stitutional ; on the contrary, Justice
portions to a very narrow compass, and
Holmes spoke for the Court in three free
then proceeded to sustain a conviction
speech cases growing out of this statute
under the New York criminal anarchy
where convictions were sustained.7 In
law on traditional police power grounds.
the three cases where they dissented,
Indeed, in two of the three World War
their disagreement was based on the
I free speech cases where Justice Holmes
belief that the words used by the de-
spoke for the Court, he himself made no
fendants had not created the sort of
mention of the clear and present danger
standard.~3 Chief

Justice Hughes, who
Dissenting in Abrams v. United States, 250
U. S. 616, 630 (1919). For a masterful state-
strongly devoted to freedom of
ment of Justice Brandeis’ position, see his
Abrams v. United States, 250 U. S. 616
concurring opinion in Whitney v. California,
(1919) ; Schaefer v. United States, 251 U. S.
274 U. S. 357 (1927).
466 (1920) ; Pierce v. United States, 252 U. S.
See Robert E. Cushman, "’Clear and Pres-
239 (1920).
ent Danger’ in Free Speech Cases: A Study in
Gitlow v. New York, 268 U. S. 652 (1925).
Judicial Semantics," in M. R. Konvitz and A.
Whitney v. California, 274 U. S. 357
E. Murphy (eds.), Essays in Political Theory
(Ithaca, N. Y., 1948), pp. 311-24.
The citations are given in note 8, supra.
Schenck v. United States, 249 U. S. 47
Supra, note 9.
(1919) ; Frohwerk v. United States, 249 U. S.
Frohwerk v. United States, 249 U. S. 204
204 (1919) ; Debs v. United States, 249 U. S.
(1919) ; Debs v. United States, 249 U. S. 211
211 (1919).

speech 14 and freedom of the press,15
argued that the doctrine establishes the
never utilized the Holmes-Brandeis test.
right of legislative control more than
Nor did Chief Justice Stone, another
it defends the right of free speech; that
friend of civil liberties.16 Both preferred
it justifies the suppression of all dis-
to consider free speech questions on
sident minorities in &dquo;dangerous&dquo; times;
established due process grounds.
that it exalts majority decisions over
The most vigorous critic of the clear
constitutional right; that it is &dquo;a pecul-
and present danger doctrine on the pres-
iarly inept and unsuccessful attempt to
ent Court is Justice Frankfurter, whose
formulate an exception to the principle
reputation both before and since his ap-
of the freedom of speech. 11 20 Others
pointment to the bench rests in large
have expressed opposition to the doc-
measure upon his devotion to civil liber-
trine on the ground that it is a subjec-
In 1941 he defended the older
tive test with which only men like
&dquo;reasonable tendency&dquo; test, and insisted
Holmes can be trusted, and that it is
that the Constitution does not &dquo;require
too vague and uncertain to supply a
displacement of an historic test by a
reliable guide to decision. Still others
phrase which first gained currency on
have taken the position that the rule
March 3, 1919.&dquo; 17 Five years later he
opens the door too wide for subversive
asserted that Justice Holmes never used
activity inimical to the security of the
his concept &dquo;to express a technical legal
doctrine or to convey a formula for
adjudicating cases,&dquo; but rather that it
Judgments must be subjective
was &dquo; a literary phrase not to be dis-
It is submitted that any rule would
torted by being taken from its con-
necessarily have to be subjective and
text.&dquo; 1$
He objected to the use of
lacking in precision. Whether the judge
clear and present danger in the flag
follows the &dquo;bad tendency&dquo; approach or
salute case, declaring that its application
clear and present danger or customary
as a measure of permissible educational
due process...

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