Absolutism and Democracy: Hugo L. Black’s Free Speech Jurisprudence

  • Michael Paris
  • Kevin J. McMahon


The speech struck some of America’s legal cognoscenti as quaintly naïve, at best. The date was February 17, 1960. The speaker was US Supreme Court Justice Hugo Lafayette Black Jr., and the occasion was New York University School of Law’s James Madison Lecture. There were, Justice Black proclaimed to a packed hall, “absolutes” in the Bill of Rights, “put there by men who knew what words meant, and [who] meant their prohibitions to be absolutes.” This was especially the case, Black emphatically insisted, with the First Amendment. Its words were “plain” and “easily understood.” No law means no law.1


Communist Party Free Speech Democratic Process Present Danger Strict Scrutiny 
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  1. 1.
    Justice Black’s lecture was later published in the NYU Law Review. See Hugo L. Black, “The Bill of Rights”, New York University Law Review 35 (1960): 865–881.Google Scholar
  2. 2.
    Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis, IN: Bobbs-Merrill Company, 1962), 86.Google Scholar
  3. Mark Silverstein, Constitutional Faiths: Felix Frankfurter, Hugo Black and the Process of Judicial Decision Making (Ithaca, NY: Cornell University Press, 1984).Google Scholar
  4. 8.
    Kevin J. McMahon, Reconsidering Roosevelt on Race: How the Presidency Paved the Road to Brown (Chicago, IL: University of Chicago Press, 2004)Google Scholar
  5. 9.
    Joseph Alsop and Turner Catledge, The 168 Days (New York: Doubleday, Doran & Co., 1938), 301Google Scholar
  6. Howard Ball, Hugo L. Black: Cold Steel Warrior (New York: Oxford University Press, 1996), 93Google Scholar
  7. William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995), 186.Google Scholar
  8. 11.
    Tony A. Freyer, Hugo L. Black and the Dilemma of American Liberalism, 2nd ed. (New York: Pearson Longman, 2008), 43.Google Scholar
  9. 12.
    Indeed, we would argue that certain and specific “regime principles” informed and shaped Justice Black’s understanding of freedom of speech and its role in a democracy. As Mark Graber has written, regime politics scholars suggest that Supreme Court decision making is “politically constructed.” They do not assert that it is politically determined. This still leaves a great deal of room for the justices to shape the contours of constitutional doctrine. Mark A. Graber, “Constructing Judicial Review”, Annual Review of Political Science 8 (2005): 427.CrossRefGoogle Scholar
  10. 13.
    Alexander Meiklejohn, Free Speech and Its Relation to Self-Government (1948; reprint New York: Lawbook Exchange, 2011), 23Google Scholar
  11. 15.
    On Meiklejohn’s claim that “private” speech is entitled to less protection, see Gerald Gunther and Kathleen M. Sullivan, Constitutional Law, 13th Edition (Westbury, NY: The Foundation Press, 1997), 1027.Google Scholar
  12. 17.
    See, for example, Justice Black’s comments in a letter to Justice Roberts regarding Hague v. CIO, 307 U.S. 496 (1939) (striking down a parade permit regulation because it granted officials too much discretion), quoted in Tinsley E. Yarbrough, Mr. Justice Black and His Critics (Durham, NC: Duke University Press, 1988), 177.Google Scholar
  13. 30.
    Roger K. Newman, Hugo Black: A Biography (New York: Pantheon Books, 1994), 370–371.Google Scholar
  14. 46.
    Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of1798 to the War on Terrorism (New York: W. W. Norton, 2004), 334.Google Scholar
  15. 56.
    Thomas I. Emerson, The System of Freedom of Expression (New York: Random House, 1970), 164–165.Google Scholar
  16. 69.
    See Lucas A. Powe Jr., The Warren Court and American Politics (Cambridge, MA: Harvard University Press, 2000), 76–93.Google Scholar
  17. 76.
    For a brief account of the case, and Barenblatt’s own statement about it, see Peter H. Irons, The Courage of Their Convictions (New York: Free Press, 1988), 81–104.Google Scholar
  18. 83.
    Black retired from the Court on September 17, 1971, and died a week later. Yarbrough, Mr. Justice Black, 159–185, discusses the claims of scholars that Black was inconsistent over the course of his career, going from an absolutist position to a more restrictive one in the 1960s. See also, Andrew Martin and Kevin Quinn, “Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953–1999”, Political Analysis 10 (2002): 134–153.CrossRefGoogle Scholar
  19. 90.
    See Yarbrough, Mr. Justice Black, 159–185 and Sylvia Snowiss, “The Legacy of Justice Black”, Supreme Court Review 1973 (1973): 237.Google Scholar

Copyright information

© Helen J. Knowles and Steven B. Lichtman 2015

Authors and Affiliations

  • Michael Paris
  • Kevin J. McMahon

There are no affiliations available

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