Abstract
Appearances can be very deceptive. The Free Speech Clause of the First Amendment to the US Constitution is linguistically straightforward and, at first glance, there appears to be no room for multiple interpretations. As Justice Hugo L. Black famously declared in 1959, “I read ‘no law abridging … ’ to mean no law abridging.”1 However, even Black, one of the Supreme Court’s staunchest defenders of free speech, was not a true First Amendment absolutist, because on several occasions he supported governmental abridgment of that freedom. He was, one might say, a “qualified absolutist.”2 For example, in United States v. O’Brien (1968) Black joined six of his colleagues in holding that David Paul O’Brien had no constitutionally protected right to burn his draft card on the steps of the South Boston Courthouse to protest the Vietnam War. Similarly, in Adderley v. Florida (1966) he refused to view expressive conduct as constitutionally protected speech. Black wrote the majority opinion upholding the convictions of a group of individuals who violated a state trespass law by assembling in the driveway of a county jail and protesting that institution’s incarceration policies (which included racial segregation).3 Ultimately, Black was no different from any other justice; a jurist who frowned upon any and all governmental efforts to suppress speech has never graced the Supreme Court’s bench.
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Notes
Rodney A. Smolla, Free Speech in an Open Society (New York: Alfred A. Knopf, 1992), 24.
David M. Rabban, Free Speech in Its Forgotten Years (New York: Cambridge University Press, 1997), 13.
Justice Felix Frankfurter, quoted in David M. O’Brien, Storm Center: The Supreme Court in American Politics, 9th ed. (New York: W. W. Norton, 2011), 280.
Some of the seminal readings addressing and/or employing these different models are Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge: Cambridge University Press, 2002)
Lee Epstein and Jack Knight, The Choices Justices Make (Washington, DC: CQ Press, 1998)
Cornell W. Clayton and Howard Gillman, eds., Supreme Court Decision-Making: New Institutionalist Approaches (Chicago, IL: University of Chicago Press, 1999)
Nancy L. Maveety, ed., The Pioneers of Judicial behavior (Ann Arbor, MI: University of Michigan Press, 2002).
C. Herman Pritchett, “The Development of Judicial Research”, in Frontiers of Judicial Research, eds. Joel B. Grossman and Joseph Tanenhaus (New York: Wiley, 1969), 42.
For a useful conceptualization of the opinions-votes distinction, see Pamela C. Corley, Amy Steigerwalt, and Artemus Ward, The Puzzle of Unanimity: Consensus on the United States Supreme Court (Palo Alto, CA: Stanford University Press, 2013).
Jerome N. Frank, “Some Reflections on Judge Learned Hand”, University of Chicago Law Review 24 (1957): 672.
Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment (New York: Random House, 1991), 89.
Steven B. Lichtman, “The Disappearing Jurisprudence of Louis Brandeis”, Brandeis University Law Journal 3 (2013): 9–28.
See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., joined by Brandeis, J., dissenting) (“the best test of truth is the power of the thought to get itself accepted in the competition of the market”). David Richards has argued that Holmes’s combination of the marketplace metaphor and the “clear and present danger” test meant that, “free speech protection would be extended only to the incredible fatuities of the lunatic fringe.” David A. J. Richards, “Free Speech as Toleration”, in Free Expression: Essays in Law and Philosophy, ed. W. J. Waluchow (Oxford: Clarendon Press, 1994), 33.
See Michael Comiskey, Seeking Justices: The Judging of Supreme Court Nominees (Lawrence, KS: University Press of Kansas, 2004)
William G. Ross, “The Ratings Game: Ranking Supreme Court Justices”, Marquette Law Review 79 (1996): 401–452.
Burt Neuborne, “First Amendment”, Touro Law Review 6 (1989): 130.
Floyd Abrams, Friend of the Court: On the Front Lines with the First Amendment (New Haven, CT: Yale University Press, 2013).
Kathleen M. Sullivan, “The Supreme Court, 2009 Term—Comment: Two Concepts of Freedom of Speech”, Harvard Law Review 124 (2010): 143–144.
Howard Gillman, Mark A. Graber, and Keith E. Whittington, American Constitutionalism: Volume II-Rights and Liberties (New York: Oxford University Press, 2013), xxvii.
There was most definitely Supreme Court life before the Marshall Court and Marbury. For example, see Maeva Marcus, ed., The Documentary History of the Supreme Court of the United States, 1789–1800, 8 vols. (New York: Columbia University Press, 1986–007).
J. R. Pole, ed., Alexander Hamilton, James Madison, John Jay, The Federalist (Indianapolis, IN: Hackett Publishing, 2005), 455.
Geoffrey R. Stone, Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism (New York: W. W. Norton, 2004), 33
Edward B. Rugemer, “Caribbean Slave Revolts and the Origins of the Gag Rule: A Contest between Abolitionism and Democracy, 17971835”, in Contesting Slavery: The Politics of Bondage and Freedom in the New American Nation, eds. John Craig Hammond and Matthew Mason (Charlottesville, VA: University of Virginia Press, 2011), 94
Michael Kent Curtis, Free Speech, ‘The People’s Darling Privilege’: Struggles for Freedom of Expression in American History (Durham, NC: Duke University Press, 2000), 125.
Kenneth M. Stampp, “The Irrepressible Conflict”, in The Imperiled Union: Essays on the Background of the Civil War, ed. Kenneth M. Stampp (New York: Oxford University Press, 1980), 236.
William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca, NY: Cornell University Press, 1977), 188
Helen J. Knowles, “The Constitution and Slavery: A Special Relationship”, Slavery and Abolition 28 (2007): 309–328.
One outlier was the 1917 decision, Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y., 1917). In that case, the New York Postmaster had attempted to prevent The Masses—a self-described “monthly journal of revolution”—from mailing its July 1917 issue to subscribers. Federal District Judge Learned Hand declared that the Postmaster’s actions were a violation of the First Amendment, which, in his eyes, only allowed government to restrict speech that directly incited illegal acts (and The Masses contained no such speech). Although Hand was reversed by the Second Circuit Court of Appeals, his views on free speech would still prove to be influential. Indeed, as several scholars have suggested, the shift Holmes made on free speech—which Frederick Lewis chronicles in Chapter 1— began after Holmes found himself seated next to Hand on a train and the two jurists spent the remainder of the journey engaged in a deep discussion about the contours of the First Amendment. See Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America (New York: Henry Holt, 2013)
G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (Oxford: Oxford University Press, 1993).
Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley, CA: University of California Press, 1991), 8.
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© 2015 Helen J. Knowles and Steven B. Lichtman
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Knowles, H.J., Lichtman, S.B. (2015). Introduction: OH What a Tangled Web They Weave. In: Knowles, H.J., Lichtman, S.B. (eds) Judging Free Speech. Palgrave Macmillan, New York. https://doi.org/10.1007/978-1-137-41262-1_1
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