jurisdiction of the United States to entertain such notions respecting
his relations to his Maker and the duties they impose as may be approved
by his judgment and conscience, and to exhibit his sentiments in such
form of worship as he may think proper, not injurious to the equal
rights of others, and to prohibit legislation for the support of any
religious tenets, or the modes of worship of any sect. The oppressive
measures adopted, and the cruelties and punishments inflicted, by the
governments of Europe for many ages, to compel parties to conform, in
their religious beliefs and modes of worship, to the views of the most
numerous sect, and the folly of attempting in that way to control the
mental operations of persons, and enforce an outward conformity to a
prescribed standard, led to the adoption of (this) amendment."[40] "The
constitutional inhibition of legislation on the subject of religion has
a double aspect. On the one hand, it forestalls compulsion by law of the
acceptance of any creed or the practice of any form of worship. Freedom
of conscience and freedom to adhere to such religious organization or
form of worship as the individual may choose cannot be restricted by
law. On the other hand, it safeguards the free exercise of the chosen
form of religion. Thus the Amendment embraces two concepts,--freedom to
believe and freedom to act. The first is absolute, but in the nature of
things, the second cannot be."[41]
PAROCHIAL SCHOOLS
The Society of Sisters, an Oregon corporation, was empowered by its
charter to care for orphans and to establish and maintain schools and
academies for the education of the youth. Systematic instruction and
moral training according to the tenets of the Roman Catholic Church was
given in its establishments along with education in the secular
branches. By an Oregon statute, effective September 1, 1926, it was
required that every parent, or other person having control or charge or
custody of a child between eight and sixteen years send him "to a public
school for the period of time a public school shall be held during the
current year" in the district where the child resides; and failure so to
do was declared a misdemeanor. The District Court of The United States
for Oregon enjoined the enforcement of the statute and the Supreme Court
unanimously sustained its action,[42] holding that the measure
unreasonably interfered with the liberty of parents and guardians to
direct the upbringing and education of children under their control--a
liberty protected by the Fourteenth Amendment. While the First Amendment
was not mentioned in the Court's opinion, the subsequent absorption of
its religious clauses into the Fourteenth Amendment seems to make the
case relevant to the question of their proper interpretation.
FREE EXERCISE OF RELIGION: FEDERAL RESTRAINTS
Religious belief cannot be pleaded as a justification for an overt act
made criminal by the law of the land. "Laws are made for the government
of action, and while they cannot interfere with mere religious belief
and opinions, they may with practices."[43] To permit a man to excuse
conduct in violation of law on the ground of religious belief "would be
to make the professed doctrines of religious belief superior to the law
of the land, and in effect to permit every citizen to become a law unto
himself."[44] It does not follow that "because no mode of worship can be
established or religious tenets enforced in this country, therefore any
tenets, however destructive of society, may be held and advocated, if
asserted, to be a part of the religious doctrine of those advocating and
practicing them * * * Whilst legislation for the establishment of a
religion is forbidden, and its free exercise permitted, it does not
follow that everything which may be so-called can be tolerated. Crime is
not the less odious because sanctioned by what any particular sect may
designate as religion."[45] Accordingly acts of Congress directed
against either the practice of the advocacy of polygamy by members of a
religious sect which sanctioned the practice, were held valid.[46] But
when, in the Ballard Case,[47] decided in 1944, the promoters of a
religious sect, whose founder had at different times identified himself
as Saint Germain, Jesus, George Washington, and Godfre Ray King, were
convicted of using the mails to defraud by obtaining money on the
strength of having supernaturally healed hundreds of persons, they found
the Court in a softened frame of mind. Although the trial judge,
carefully discriminating between the question of the truth of
defendants' pretensions and that of their good faith in advancing them,
had charged the jury that it could pass on the latter but not the
former, this caution did not avail with the Court, which contrived on
another ground ultimately to upset the verdict of "guilty." The late
Chief Justice Stone, speaking for himself and Justices Roberts and
Frankfurter, dissented: "I cannot say that freedom of thought and
worship includes freedom to procure money by making knowingly false
statements about one's religious experiences."[48]
FREE EXERCISE OF RELIGION: STATE AND LOCAL RESTRAINTS
The Mormon Church cases were decided prior to the emergence of the clear
and present danger doctrine dealt with below. In its consideration of
cases stemming from State and local legislation the Court has endeavored
at times to take account of this doctrine, with the result that its
decisions have followed a somewhat erratic course. The leading case is
Cantwell _v._ Connecticut.[49] Here three members of the sect calling
itself Jehovah's Witnesses were convicted under a statute which forbade
the unlicensed soliciting of funds on the representation that they were
for religious or charitable purposes, and also on a general charge of
breach of the peace by accosting in a strongly Catholic neighborhood two
communicants of that faith and playing to them a phonograph record which
grossly insulted the Christian religion in general and the Catholic
church in particular. Both convictions were held to violate the
constitutional guarantees of speech and religion, the clear and present
danger rule being invoked in partial justification of the holding,
although it is reasonably inferable from the Court's own recital of the
facts that the listeners to the phonograph record exhibited a degree of
self-restraint rather unusual under the circumstances. Two weeks later
the Court, as if to "compensate" for its zeal in the Cantwell Case, went
to the other extreme, and urging the maxim that legislative acts must be
presumed to be constitutional, sustained the State of Pennsylvania in
excluding from its schools children of the Jehovah's Witnesses, who in
the name of their beliefs refused to salute the flag.[50] The subsequent
record of the Court's holdings in this field is somewhat variable. A
decision in June, 1942, sustaining the application to vendors of
religious books and pamphlets of a nondiscriminatory license fee[51] was
eleven months later vacated and formally reversed;[52] shortly
thereafter a like fate overtook the decision in the "Flag Salute"
Case.[53] In May, 1943, the Court found that an ordinance of the city of
Struthers, Ohio, which made it unlawful for anyone distributing
literature to ring a doorbell or otherwise summon the dwellers of a
residence to the door to receive such literature, was violative of the
Constitution when applied to distributors of leaflets advertising a
religious meeting.[54] But eight months later it sustained the
application of Massachusetts' child labor laws in the case of a nine
year old girl who was permitted by her legal custodian to engage in
"preaching work" and the sale of religious publications after hours.[55]
However, in Saia _v._ New York[56] decided in 1948, the Court held, by a
vote of five Justices to four, that an ordinance of the city of
Lockport, New York, which forbade the use of sound amplification devices
except with the permission of the Chief of Police was unconstitutional
as applied in the case of a Jehovah's Witness who used sound equipment
to amplify lectures in a public park on Sunday, on religious subjects.
But a few months later the same Court, again dividing five-to-four,
sustained a Trenton, New Jersey ordinance which banned from that city's
streets all loud speakers and other devices which emit "loud and raucous
noises."[57] The latest state of the doctrine on this particular topic
is represented by three cases, all decided the same day. In one the
conviction of a Baptist minister for conducting religious services in
the streets of New York City without first obtaining a permit from the
city police commissioner was overturned,[58] a permit having been
refused him on the ground that he had in the past ridiculed other
religious beliefs thereby stirring strife and threatening violence.
Justice Jackson dissented, quoting Mr. Bertrand Russell to prove that
"too little liberty brings stagnation, and too much brings chaos. The
fever of our times," he suggested, "inclines the Court today to favor
chaos."[59] In the second, the Court upset the conviction of a group of
Jehovah's Witnesses in Maryland for using a public park without first
obtaining a permit.[60] The third case,[61] which had nothing to do with
religion, affords an interesting foil to the other two. It is dealt with
in another connection.[62]
FREE EXERCISE OF RELIGION: OBLIGATIONS OF CITIZENSHIP
In 1918 the Court rejected as too unsound to require more than a mere
statement the argument that the Selective Service Act was repugnant to
the First Amendment as establishing or interfering with religion, by
reason of the exemptions granted ministers of religion, theological
students and members of sects whose tenets exclude the moral right to
engage in war.[63] The opposite aspect of this problem was presented in
Hamilton _v._ Regents.[64] There a California statute requiring all male
students at the State university to take a course in military science
and tactics was assailed by students who claimed that military training
was contrary to the precepts of their religion. This act did not require
military service, nor did it peremptorily command submission to military
training. The obligation to take such training was imposed only as a
condition of attendance at the university. In these circumstances, all
members of the Court concurred in the judgment sustaining the statute.
No such unanimity of opinion prevailed in In re Summers,[65] where the
Court upheld the action of a State Supreme Court in denying a license to
practice law to an applicant who entertained conscientious scruples
against participation in war. The license was withheld on the premise
that a conscientious belief in nonviolence to the extent that the
believer would not use force to prevent wrong, no matter how aggravated,
made it impossible for him to swear in good faith to support the State
Constitution. The Supreme Court held that the State's insistence that an
officer charged with the administration of justice take such an oath and
its interpretation of that oath to require a willingness to perform
military service, did not abridge religious freedom. In a dissenting
opinion in which Justices Douglas, Murphy and Rutledge concurred,
Justice Black said, "I cannot agree that a State can lawfully bar from a
semipublic position a well-qualified man of good character solely
because he entertains a religious belief which might prompt him at some
time in the future to violate a law which has not yet been and may never
be enacted."[66]
Freedom of Speech and Press
THE BLACKSTONIAN BACKGROUND
"The liberty of the press," says Blackstone, "is indeed essential to the
nature of a free state: but this consists in laying no previous
restraints upon publications, and not in freedom from censure from
criminal matter when published. Every freeman has an undoubted right to
lay what sentiments he pleases before the public: to forbid this, is to
destroy the freedom of the press: but if he publishes what is improper,
mischievous, or illegal, he must take the consequence of his own
temerity. To subject the press to the restrictive power of a licenser,
as was formerly done, both before and since the revolution, is to
subject all freedom of sentiment to the prejudices of one man, and make
him the arbitrary and infallible judge of all controverted points in
learning, religion and government. But to punish (as the law does at
present) any dangerous or offensive writings, which, when published,
shall on a fair and impartial trial be adjudged of a pernicious
tendency, is necessary for the preservation of peace and good order, of
government and religion, the only solid foundations of civil liberty.
Thus, the will of individuals is still left free: the abuse only of that
free will is the object of legal punishment. Neither is any restraint
hereby laid upon freedom of thought or inquiry: liberty of private
sentiment is still left; the disseminating, or making public, of bad
sentiments, destructive to the ends of society, is the crime which
society corrects."[67]
EFFECT OF AMENDMENT I ON THE COMMON LAW
Blackstone was declaring the Common Law of his day, and it was no
intention of the framers of Amendment I to change that law. "The
historic antecedents of the First Amendment preclude the notion that its
purpose was to give unqualified immunity to every expression that
touched on matters within the range of political interest. The
Massachusetts Constitution of 1780 guaranteed free speech; yet there are
records of at least three convictions for political libels obtained
between 1799 and 1803. The Pennsylvania Constitution of 1790 and the
Delaware Constitution of 1792 expressly imposed liability for abuse of
the right of free speech. Madison's own State put on its books in 1792 a
statute confining the abusive exercise of the right of utterance. And it
deserves to be noted that in writing to John Adams' wife, Jefferson did
not rest his condemnation of the Sedition Act of 1798 on his belief in
unrestrained utterance as to political matter. The First Amendment, he
argued, reflected a limitation upon Federal power, leaving the right to
enforce restrictions on speech to the States.[68] * * * 'The law is
perfectly well settled,' this Court said over fifty years ago, 'that the
first ten amendments to the Constitution, commonly known as the Bill of
Rights, were not intended to lay down any novel principles of
government, but simply to embody certain guaranties and immunities which
we had inherited from our English ancestors, and which had from time
immemorial been subject to certain well-recognized exceptions arising
from the necessities of the case. In incorporating these principles into
the fundamental law there was no intention of disregarding the
exceptions, which continued to be recognized as if they had been
formally expressed.'[69] That this represents the authentic view of the
Bill of Rights and the spirit in which it must be construed has been
recognized again and again in cases that have come here within the last
fifty years."[70]
AMENDMENT XIV AND BLACKSTONE
Nor was the adoption of Amendment XIV thought to alter the above
described situation until a comparatively recent date. Said Justice
Holmes, speaking for the Court in 1907: "We leave undecided the question
whether there is to be found in the Fourteenth Amendment a prohibition
similar to that in the First. But even if we were to assume that freedom
of speech and freedom of the press were protected from abridgment on the
part not only of the United States but also of the States, still we
should be far from the conclusion that the plaintiff in error would have
us reach. In the first place, the main purpose of such constitutional
provisions is 'to prevent all such _previous restraints_ upon
publications as had been practiced by other governments,' and they do
not prevent the subsequent punishment of such as may be deemed contrary
to the public welfare. Commonwealth _v._ Blanding, 3 Pick. 304, 313,
314; Respublica _v._ Oswald, 1 Dallas 319, 325. The preliminary freedom
extends as well to the false as to the true; the subsequent punishment
may extend as well to the true as to the false. This was the law of
criminal libel apart from statute in most cases, if not in all.
Commonwealth _v._ Blanding, _ubi sup._; 4 Bl. Comm. 150."[71] This
appears to be an unqualified endorsement of Blackstone. But, as Justice
Holmes remarks in the same opinion, "There is no constitutional right to
have all general propositions of law once adopted remain unchanged."[72]
As late as 1922 Justice Pitney, speaking for the Court, said: "Neither
the Fourteenth Amendment nor any other provision of the Constitution of
the United States imposes upon the States any restriction about 'freedom
of speech' or the 'liberty of silence' * * *"[73]
THE CLEAR AND PRESENT DANGER RULE, MEANING
The rule requires that before an utterance can be penalized by
government it must, ordinarily, have occurred "in such circumstances or
have been of such a nature as to create a clear and present danger" that
it would bring about "substantive evils" within the power of government
to prevent.[74] The question whether these conditions exist is one of
law for the courts, and ultimately for the Supreme Court, in enforcement
of the First and/or the Fourteenth Amendment;[75] and in exercise of its
power of review in these premises the Court is entitled to review
broadly findings of facts of lower courts, whether State or federal.[76]
CONTRASTING OPERATION OF THE COMMON LAW RULE
In Davis _v._ Beason,[77] decided in 1890, the question at issue was the
constitutionality of a statute of the Territory of Idaho, providing that
"no person who is a bigamist or polygamist, or who teaches, advices,
counsels or encourages any person or persons to become bigamists or
polygamists or to commit any other crime defined by law, or to enter
into what is known as plural or celestial marriage, or who is a member
of any order, organization or association which teaches, advises,
counsels or encourages its members or devotees or any other persons to
commit the crime of bigamy or polygamy, or any other crime defined by
law, either as a rite or ceremony of such order, organization or
association, or otherwise, is permitted to vote at any election, or to
hold any position or office of honor, trust or profit within this
Territory." A unanimous court held this enactment to be within the
legislative powers which Congress had conferred on the Territory and not
to be open to any constitutional objection. Said Justice Field for the
Court: "Bigamy and polygamy are crimes by the laws of all civilized and
Christian countries. They are crimes by the laws of the United States,
and they are crimes by the laws of Idaho. They tend to destroy the
purity of the marriage relation, to disturb the peace of families, to
degrade woman and to debase man. Few crimes are more pernicious to the
best interests of society and receive more general or more deserved
punishment. To extend exemption from punishment for such crimes would be
to shock the moral judgment of the community. To call their advocacy a
tenet of religion is to offend the common sense of mankind. If they are
crimes, then to teach, advise, and counsel their practice is to aid in
their commission, and such teaching and counselling are themselves
criminal and proper subjects of punishment, as aiding and abetting crime
are in all other cases."[78] No talk here about the necessity for
showing that the prohibited teaching, counselling, advising, etc., must
be shown to have occurred in circumstances creating a clear and present
danger of its being followed.
In Fox _v._ Washington,[79] decided in 1915, the question at issue was
the constitutionality of a Washington statute denouncing "the wilful
printing, circulation, etc., of matter advocating or encouraging the
commission of any crime or breach of the peace or which shall tend to
encourage or advocate disrespect for law or any court or courts of
justice." The State Supreme Court had assumed that the case was governed
by the guarantees of the United States Constitution of freedom of
speech, and especially by the Fourteenth Amendment, and its decision
sustaining the statute was upheld by the Supreme Court on the same
assumption, in the case of a person indicted for publishing an article
encouraging and inciting what the jury had found to be a breach of State
laws against indecent exposure. Again, one notes the total absence of
any reference to the clear and present danger rule. But not all State
enactments survived judicial review prior to the adoption of the clear
and present danger test. In 1927 the Court disallowed a Kansas statute
which, as interpreted by the highest State court, made punishable the
joining of an organization teaching the inevitability of "the class
struggle";[80] three years later it upset a California statute which
forbade in all circumstances the carrying of a red flag as a symbol of
opposition to government;[81] and 6 years after that it upset a
conviction under an Oregon statute for participating in a meeting held
under the auspices of an organization which was charged with advocating
violence as a political method, although the meeting itself was orderly
and did not advocate violence.[82] In none of these cases was the clear
and present danger test mentioned.
EMERGENCE OF THE CLEAR AND PRESENT TEST
In Schenck _v._ United States[83] appellants had been convicted of
conspiracy to violate the Espionage Act of June 15, 1917[84] "by causing
and attempting to cause insubordination, etc., in the military and naval
forces of the United States, and to obstruct the recruiting and
enlistment service of the United States, when the United States was at
war with the German Empire, to-wit, that the defendants willfully
conspired to have printed and circulated to men who had been called and
accepted for military service under the Act of May 18, 1917, a document
set forth and alleged to be calculated to cause such insubordination and
obstruction." Affirming the conviction, the Court, speaking by Justice
Holmes said: "It well may be that the prohibition of laws abridging the
freedom of speech is not confined to previous restraints, although to
prevent them may have been the main purpose, as intimated in Patterson
_v._ Colorado.[85] * * * We admit that in many places and in ordinary
times the defendants in saying all that was said in the circular would
have been within their constitutional rights. But the character of every
act depends upon the circumstances in which it is done. * * * The most
stringent protection of free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic. It does not even protect
a man from an injunction against uttering words that have all the effect
of force. * * * The question in every case is whether the words used are
used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and
degree."[86] One week later two other convictions under the same act
were affirmed, with Justice Holmes again speaking for the unanimous
Court. In Frohwerk _v._ United States[87] he said: "With regard to the
argument [on the constitutional question] we think it necessary to add
to what has been said in Schenck _v._ United States, * * *, only that
the First Amendment while prohibiting legislation against free speech as
such cannot have been, and obviously was not, intended to give immunity
for every possible use of language. Robertson _v._ Baldwin, 165 U.S.
275, 281. We venture to believe that neither Hamilton nor Madison, nor
any other competent person then or later, ever supposed that to make
criminal the counselling of a murder within the jurisdiction of Congress
would be an unconstitutional interference with free speech."[88] In Debs
_v._ United States[89] he referred to "the natural and intended effect"
and "probable effect"[90] of the condemned speech (straight common law).
When, moreover, a case arose in which the dictum in the Schenck case
might have influenced the result, the Court, seven Justices to two,
declined to follow it. This was in Abrams _v._ United States,[91] in
which the Court affirmed a conviction for spreading propaganda
"obviously intended to provoke and to encourage resistance to the United
States in the war." Justices Holmes and Brandeis dissented on the ground
that the utterances did not create a clear and imminent danger[92] of
substantive evils. And the same result was reached in Schaefer _v._
United States,[93] again over the dissent of Justices Holmes and
Brandeis, the Court saying that: "The tendency of the articles and their
efficacy were enough for the offense * * *."[94]
THE GITLOW AND WHITNEY CASES
Gitlow was convicted under a New York statute making it criminal to
advocate, advise or teach the duty, necessity or propriety of
overturning organized government by force or violence.[95] Since there
was no evidence as to the effect resulting from the circulation of the
manifesto for which he was convicted and no contention that it created
any immediate threat to the security of the State, the Court was obliged
to reach a clear cut choice between the common law test of dangerous
tendency and the clear and present danger test. It adopted the former
and sustained the conviction, saying "By enacting the present statute
the state has determined, through its legislative body, that utterances
advocating the overthrow of organized government by force, violence, and
unlawful means, are so inimical to the general welfare, and involve such
danger of substantive evil, that they may be penalized in the exercise
of its police power. That determination must be given great weight * * *
That utterances inciting to the overthrow of organized government by
unlawful means present a sufficient danger of substantive evil to bring
their punishment within the range of legislative discretion is clear.
Such utterances, by their very nature, involve danger to the public
peace and to the security of the state. They threaten breaches of the
peace and ultimate revolution. And the immediate danger is none the less
and substantial because the effect of a given utterance cannot be
accurately foreseen. The state cannot reasonably be required to measure
the danger from every such utterance in the nice balance of a jeweler's
scale."[96] Justice Sanford distinguished the Schenck Case by asserting
that its "general statement" was intended to apply only to cases where
the statute "merely prohibits certain acts involving the danger of
substantive evil without any reference to language itself,"[97] and has
no application "where the legislative body itself has previously
determined the danger of substantive evil arising from utterances of a
specified character."[98]
Two years later, in Whitney _v._ California,[99] upon evidence which
tended to establish the existence of a conspiracy to commit certain
serious crimes, the conviction was sustained unanimously. In a
concurring opinion in which Justice Holmes joined, Justice Brandeis
restated the test of clear and present danger to include the intent to
create such danger: "But, although the rights of free speech and
assembly are fundamental, they are not in their nature absolute. Their
exercise is subject to restriction, if the particular restriction
proposed is required in order to protect the state from destruction or
from serious injury, political, economic or moral. That the necessity
which is essential to a valid restriction does not exist unless speech
would produce, or is intended to produce, a clear and imminent danger of
some substantive evil which the State constitutionally may seek to
prevent has been settled. _See_ Schenck _v._ United States, 249 U.S. 47,
52. * * *, no danger flowing from speech can be deemed clear and
present, unless the incidence of the evil apprehended is so imminent
that it may befall before there is opportunity for full discussion. If
there be time to expose through discussion the falsehood and fallacies,
to avert the evil by the processes of education, the remedy to be
applied is more speech, not enforced silence."[100]
ACCEPTANCE OF THE CLEAR AND PRESENT DANGER TEST
Ten years later, in Herndon _v._ Lowry,[101] a narrowly divided Court
drew a distinction between the prohibition by law of specific utterances
which the legislators have determined have a "dangerous tendency" to
produce substantive evil and the finding by a jury to that effect, and
on this basis reversed the conviction of a communist organizer under a
State criminal syndicalism statute, with the intimation that where it is
left to a jury to determine whether particular utterances are unlawful,
the test of clear and present danger must be applied.[102] Finally, in
Thornhill _v._ Alabama,[103] the Court went the full length in
invalidating a State law against picketing because[104] "* * * no clear
and present danger of destruction of life or property, or invasion of
the right of privacy, or breach of the peace can be thought to be
inherent in the activities of every person who approaches the premises
of an employer and publicizes the facts of a labor dispute involving the
latter." The same term, again invoking the clear and present danger
formula, it reversed a conviction for the common law offense of inciting
a breach of the peace by playing, on a public street, a phonograph
record attacking a religious sect.[105]
THE POLICE POWER AND CLEAR AND PRESENT DANGER
Public Order
Prior to the Court's ratification of the clear and present danger test
it had held that while on the one hand, peaceful and orderly opposition
to government by legal means may not be inhibited, and that the
Constitution insures the "maintenance of the opportunity for free
political discussion to the end that government may be responsive to the
will of the people and that changes may be obtained by lawful
means,"[106] yet on the other hand, the State may punish those who abuse
their freedom of speech by utterances tending to incite to crime,[107]
or to endanger the foundations of organized government or to threaten
its overthrow by unlawful means.[108] The impact of the clear and
present danger test upon these principles is well illustrated by a
holding in 1949 by a sharply divided Court, that a Chicago ordinance
which, as judicially interpreted, was held to permit punishment for
breach of the peace for speech which "stirs the public to anger, invites
disputes, (or) brings about a condition of unrest" was an undue and
unlawful restriction on the right of free speech.[109] Reversing a
conviction under the ordinance, Justice Douglas wrote: "A function of
free speech under our system of government is to invite dispute. It may
indeed best serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are, or even
stirs people to anger. Speech is often provocative and challenging. It
may strike at prejudices and preconceptions and have profound unsettling
effects as it presses for acceptance of an idea. That is why freedom of
speech, though not absolute * * * is nevertheless protected against
censorship or punishment, unless shown likely to produce a clear and
present danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest."[110] Finding that the ordinance as
thus construed was unconstitutional, the majority did not enter into a
consideration of the facts of the particular case. Dissenting, Justice
Jackson dwelt at length upon the evidence which showed that a riot had
actually occurred and that the speech in question had in fact provoked a
hostile mob, incited a friendly one, and threatened violence between the
two. Conceding the premises of the majority opinion, he argued
nevertheless that: "Because a subject is legally arguable, however, does
not mean that public sentiment will be patient of its advocacy at all
times and in all manners. * * * A great number of people do not agree
that introduction to America of communism or fascism is even debatable.
Hence many speeches, such as that of Terminiello, may be legally
permissible but may nevertheless in some surroundings be a menace to
peace and order. When conditions show the speaker that this is the case,
as it did here, there certainly comes a point beyond which he cannot
indulge in provocations to violence without being answerable to
society."[111] Early in 1951 the Court itself endorsed this position in
Feiner _v._ New York.[112] Here was sustained the conviction of a
speaker who in addressing a crowd including a number of Negroes, through
a public address system set up on the sidewalk, asserted that the
Negroes "should rise up in arms and fight for their rights," called a
number of public officials, including the President, "bums," and ignored
two police requests to stop speaking. The Court took cognizance of the
findings by the trial court and two reviewing State courts that danger
to public order was clearly threatened.[113]
Public Morals
But the police power extends also to the public morals. In Winters _v._
New York[114] the question at issue was the constitutionality of a State
statute making it an offense "to print, publish, or distribute, or to
possess with intent to distribute, any printed matter principally made
up of criminal views, police reports, or accounts of criminal deeds, or
pictures, or stories of deeds of bloodshed, lust or crime," and
construed by the State courts "as prohibiting such massing of accounts
of deeds of bloodshed and lust as to incite to crimes against the
person." A divided Court, 6 Justices to 3, following the third argument
of the case before it, set the act aside on the ground that, as
construed, it did not define the prohibited acts in such a way as to
exclude those which are a legitimate exercise of the constitutional
freedom of the press; and further, that it failed to set up an
ascertainable standard of guilt.[115] A few weeks earlier the Court had
vacated a judgment of the Supreme Court of Utah affirming convictions on
a charge of conspiring to "commit acts injurious to public morals" by
counseling, advising and practicing plural marriage.[116] Four members
of the Court thought that the cause should be remanded in order to give
the State Supreme Court opportunity to construe that statute and a fifth
agreed with this result without opinion. Justice Rutledge, speaking for
himself and Justices Douglas and Murphy, dissented on the ground that
the Utah Court had already construed the statute to authorize punishment
for exercising the right of free speech. He said: "The Utah statute was
construed to proscribe any agreement to advocate the practice of
polygamy. Thus the line was drawn between discussion and advocacy. The
Constitution requires that the statute be limited more narrowly. At the
very least the line must be drawn between advocacy and incitement, and
even the state's power to punish incitement may vary with the nature of
the speech, whether persuasive or coercive, the nature of the wrong
induced, whether violent or merely offensive to the mores, and the
degree of probability that the substantive evil actually will
result."[117]
PICKETING AND CLEAR AND PRESENT DANGER
Closely allied to the problem of dangerous utterances is the resort to
picketing as a means of communication and persuasion in labor disputes.
In such cases, the evils feared by the legislature usually arise, not
out of the substance of the communications, but from the manner in which
they are made. Applying the test of clear and present danger in
Thornhill _v._ Alabama[118] and Carlson v. California,[119] the Court
invalidated laws against peaceful picketing, including the carrying of
signs and banners. It held that: "the dissemination of information
concerning the facts of a labor dispute must be regarded as within that
area of free discussion that is guaranteed by the Constitution" and may
be abridged only where "the clear danger of substantive evils arises
under circumstances affording no opportunity to test the merits of ideas
by competition for acceptance in the market of public opinion."[120]
Shortly thereafter a divided Court ruled that peaceful picketing may be
enjoined where the labor dispute has been attended by violence on a
serious scale.[121] Speaking for the majority on this occasion, Justice
Frankfurter asserted that "utterance in a context of violence can lose
its significance as an appeal to reason and become part of an instrument
of force * * * (and) was not meant to be sheltered by the
Constitution."[122]
For a brief period strangers to the employer were accorded an almost
equal freedom of communication by means of picketing.[123] Subsequent
cases, however, have recognized that "while picketing has an ingredient
of communication it cannot dogmatically be equated with the
constitutionally protected freedom of speech."[124] Without dissent the
Court has held that a State may enjoin picketing designed to coerce the
employer to violate State law by refusing to sell ice to nonunion
peddlers,[125] by interfering with the right of his employees to decide
whether or not to join a union,[126] or by choosing a specified
proportion of his employees from one race, irrespective of merit.[127]
By close divisions, it also sustained the right of a State to forbid the
"conscription of neutrals" by the picketing of a restaurant solely
because the owner had contracted for the erection of a building (not
connected with the restaurant and located some distance away) by a
contractor who employed nonunion men;[128] or the picketing of a shop
operated by the owner without employees to induce him to observe certain
closing hours.[129] In this last case Justice Black distinguished
Thornhill _v._ Alabama and other prior cases by saying, "No opinions
relied on by petitioners assert a constitutional right in picketers to
take advantage of speech or press to violate valid laws designed to
protect important interests of society * * * it has never been deemed an
abridgment of freedom of speech or press to make a course of conduct
illegal merely because the conduct was in part initiated, evidenced, or
carried out by means of language, either spoken, written, or printed.
* * * Such an expansive interpretation of the constitutional guaranties
of speech and press would make it practically impossible ever to enforce
laws against agreements in restraint of trade as well as many other
agreements and conspiracies deemed injurious to society."[130] By the
same token, a State anti-closed shop law does not infringe freedom of
speech, of assembly or of petition;[131] neither does a "cease and
desist" order of a State Labor Relations Board directed against work
stoppages caused by the calling of special union meetings during working
hours.[132] But, by a vote of five Justices to four--the five, however,
being unable to agree altogether among themselves--a State may not
require labor organizers to register,[133] although, as Justice Roberts
pointed out for the dissenters, "other paid organizers, whether for
business or for charity could be required thus to identify
themselves."[134]
CONTEMPT OF COURT AND CLEAR AND PRESENT DANGER
One area in which the clear and present danger rule has undoubtedly
enlarged freedom of utterance beyond common law limits is that of
discussion of judicial proceedings. In 1907 the Supreme Court speaking
by Justice Holmes refused to review the conviction of an editor for
contempt of court in publishing articles and cartoons criticizing the
action of the court in a pending case.[135] It took the position that
even if freedom of the press was protected against abridgment by the
State, a publication tending to obstruct the administration of justice
was punishable, irrespective of its truth. In recent years the Court not
only has taken jurisdiction of cases of this order but has scrutinized
the facts with great care and has not hesitated to reverse the action of
State courts. Bridges _v._ California[136] is the leading case.
Enlarging upon the idea that clear and present danger is an appropriate
guide in determining whether comment on pending cases can be punished,
Justice Black said: "We cannot start with the assumption that
publications of the kind here involved actually do threaten to change
the nature of legal trials, and that to preserve judicial impartiality,
it is necessary for judges to have a contempt power by which they can
close all channels of public expression to all matters which touch upon
pending cases. We must therefore turn to the particular utterances here
in question and the circumstances of their publication to determine to
what extent the substantive evil of unfair administration of justice was
a likely consequence, and whether the degree of likelihood was
sufficient to justify summary punishment."[137] Speaking on behalf of
four dissenting members, Justice Frankfurter objected: "A trial is not a
'free trade in ideas,' nor is the best test of truth in a courtroom 'the
power of the thought to get itself accepted in the competition of the
market.' * * * We cannot read into the Fourteenth Amendment the freedom
of speech and of the press protected by the First Amendment and at the
same time read out age-old means employed by states for securing the
calm course of justice. The Fourteenth Amendment does not forbid a state
to continue the historic process of prohibiting expressions calculated
to subvert a specific exercise of judicial power. So to assure the
impartial accomplishment of justice is not an abridgment of freedom of
speech or freedom of the press, as these phases of liberty have
heretofore been conceived even by the stoutest libertarians. In act,
these liberties themselves depend upon an untrammeled judiciary whose
passions are not even unconsciously aroused and whose minds are not
distorted by extrajudicial considerations."[138] In Pennekamp _v._
Florida,[139] a unanimous Court held that criticism of judicial action
already taken, although the cases were still pending on other points,
did not create a danger to fair judicial administration of the
"clearness and immediacy necessary to close the doors of permissible
public comment"[140] even though the State court held and the Supreme
Court assumed that "the petitioners deliberately distorted the facts to
abase and destroy the efficiency of the court."[141] And in Craig _v._
Harney,[142] a divided Court held that publication, while a motion for a
new trial was pending, of an unfair report of the facts of a civil case,
accompanied by intemperate criticism of the judge's conduct was
protected by the Constitution. Said Justice Douglas, speaking for the
majority: "The vehemence of the language used is not alone the measure
of the power to publish for contempt. The fires which it kindles must
constitute an imminent, and not merely a likely, threat to the
administration of justice. The danger must not be remote or even
probable; it must immediately imperil."[143]
FREEDOM OF SPEECH AND PRESS IN PUBLIC PARKS AND STREETS
Notable also is the protection which the Court has erected in recent
years for those who desire to use the streets and the public parks as
theatres of discussion, agitation, and propaganda dissemination. In 1897
the Court unanimously sustained an ordinance of the city of Boston which
provided that "no person shall, in or upon any of the public grounds,
make any public address," etc., "except in accordance with a permit of
the Mayor,"[144] quoting with approval the following language from the
decision of the Massachusetts Supreme Judicial Court in the same case.
"For the legislature absolutely or conditionally to forbid public
speaking in a highway or public park is no more an infringement of the
rights of a member of the public than for the owner of a private house
to forbid it in the house. When no proprietary right interferes the
legislature may end the right of the public to enter upon the public
place by putting an end to the dedication to public uses. So it may take
the less step of limiting the public use to certain purposes."[145]
Forty-two years later this case was distinguished in Hague _v._
C.I.O.[146] (_See_ p. 808.) And in 1948 in Saia _v._ New York[147] an
ordinance forbidding the use of sound amplification devices by which
sound is cast directly upon the streets and public places, except with
permission of the chief of police, for the exercise of whose discretion
no standards were prescribed, was held unconstitutional as applied to
one seeking leave to amplify religious lectures in a public park. The
decision was a five-to-four holding; and eight months later a majority,
comprising the former dissenters and the Chief Justice, held it to be a
permissible exercise of legislative discretion to bar sound trucks, with
broadcasts of public interest, amplified to a loud and raucous volume,
from the public ways of a municipality.[148] Conversely, it was within
the power of the Public Utilities Commission of the District of
Columbia, following a hearing and investigation, to issue an order
permitting the Capital Transit Company, despite the protest of some of
its patrons, to receive and amplify on its street cars and buses radio
programs consisting generally of 90% music, 5% announcements, and 5%
commercial advertising. Neither operation of the radio service nor the
action of the Commission permitting it was precluded by the First and
Fifth Amendments.[149]
Under still unoverruled decisions an ordinance forbidding any
distribution of circulars, handbills, advertising, or literature of any
kind within the city limits without permission of the City Manager is an
unlawful abridgment of freedom of the press.[150] So also are ordinances
which forbid, without exception, any distributions of handbills upon the
streets.[151] Even where such distribution involves a trespass upon
private property in a company owned town,[152] or upon Government
property in a defense housing development,[153] it cannot be stopped.
The passing out of handbills containing commercial advertising may,
however, be prohibited; this is true even where such handbills may
contain some matter which, standing alone would be immune from the
restriction.[154] A municipal ordinance forbidding any person to ring
door bells, or otherwise summon to the door the occupants of any
residence, for the purpose of distributing to them circulars or
handbills was held to infringe freedom of speech and of the press as
applied to a person distributing advertisements of a religious
meeting.[155] But an ordinance forbidding door to door peddling or
canvassing unless it is invited or requested by the occupant of a
private residence is valid.[156]
CENSORSHIP
Freedom from previous restraints has never been regarded as absolute.
The principle that words having the quality of verbal acts might be
enjoined by court order was established in Gompers _v._ Bucks Stove and
Range Co.;[157] and in Near _v._ Minnesota[158] the Court, speaking
through Chief Justice Hughes, even while extending Blackstone's
condemnation of censorship to a statute which authorized the enjoining
of publications alleged to be persistently defamatory, criticized it as
being in some respects too sweeping. Indeed, the distinction between
prevention and punishment appears to have played little or no part in
determining when picketing may be forbidden in labor disputes.[159] In
Chaplinsky _v._ New Hampshire[160] and Board of Education _v._
Barnette,[161] the opinions indicated that the power of Government is
measured by the same principles in both situations. In the former
Justice Murphy asserted: "There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which have
never been thought to raise any constitutional problem. These include
the lewd and obscene, the profane, the libelous, and the insulting or
'fighting' words--those which by their very utterance inflict injury or
tend to incite an immediate breach of the peace. It has been well
observed that such are no essential part of any exposition of ideas, and
are of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social interest in
order and morality."[162] To like effect, in Board of Education _v._
Barnette, Justice Jackson set it down as "a commonplace that censorship
or suppression of expression of opinion is tolerated by our Constitution
only when the expression presents a clear and present danger of action
of a kind the State is empowered to prevent and punish."[163]
It is significant that the cases which have sanctioned previous
restraints upon the utterances of particular persons have involved
restraint by judicial, not administrative action. The prime objective of
the ban on previous restraints was to outlaw censorship accomplished by
licensing. "The struggle for the freedom of the press was primarily
directed against the power of the licensor. It was against that power
that John Milton directed his assault by his 'Appeal for the Liberty of
Unlicensed Printing.' And the liberty of the press became initially a
right to publish '_without_ a license what formerly could be published
only _with one_'."[164] Even today, a licensing requirement will bring
judicial condemnation more surely than any other form of restriction.
Except where the authority of the licensing officer is so closely
limited as to leave no room for discrimination against utterances he
does not approve,[165] the Supreme Court has struck down licensing
ordinances, even in respect of a form of communication which may be
prohibited entirely.[166] In the case of radio broadcasting, however,
where physical limitations make it impossible for everyone to utilize
the medium of communication, the Court has thus far sanctioned a power
of selective licensing;[167] while with respect to moving pictures it
has until very recently held the States' power to license, and hence to
censor, films intended for local exhibition to be substantially
unrestricted, this being "a business pure and simple, originated and
conducted for profit," and "not to be regarded, ... as part of the press
of the country or as organs of public opinion."[168] This doctrine was
laid down in 1915, but in 1948, in speaking for the Court, in United
States _v._ Paramount Pictures,[169] Justice Douglas indicated a very
different position, saying: "We have no doubt that moving pictures,
like newspapers and radio, are included in the press whose freedom is
guaranteed by the First Amendment."[170] In the so-called "Miracle
Case,"[171] in which it was held that under the First and Fourteenth
Amendments, a State may not place a prior restraint on the showing of a
motion picture film on the basis of the censor's finding that it is
"sacrilegious," a word of uncertain connotation, this point of view
becomes the doctrine of the Court and the Mutual Films Case is
pronounced "overruled" so far as it is out of harmony with the instant
holding.[172]
THE CLEAR AND PRESENT DANGER TEST: JUDICIAL DIVERSITIES
In the course of decisions enforcing this test of state action with
respect to freedom of speech and press, diversity of opinion has
appeared among the Justices upon three closely related topics: first, as
to the restrictive force of the test; second, as to the constitutional
status of freedom of speech and press; third, as to the kind of speech
which the Constitution is concerned to protect. On the first point the
following passage from Justice Black's opinion in Bridges _v._
California[173] is pertinent: "What finally emerges from the 'clear and
present danger' cases is a working principle that the substantive evil
must be extremely serious and the degree of imminence extremely high
before utterances can be punished. Those cases do not purport to mark
the furthermost constitutional boundaries of protected expression, nor
do we here. They do no more than recognize a minimum compulsion of the
Bill of Rights. For the First Amendment does not speak equivocally. It
prohibits any law 'abridging the freedom of speech or of the press.' It
must be taken as a command of the broadest scope that explicit language,
read in the context of a liberty-loving society, will allow."[174] With
this should be compared the following words from Justice Frankfurter's
concurring opinion in Pennekamp _v._ Florida,[175] which involved a
closely similar issue to the one dealt with in the Bridges Case: "'Clear
and present danger' was never used by Mr. Justice Holmes to express a
technical legal doctrine or to convey a formula for adjudicating cases.
It was a literary phrase not to be distorted by being taken from its
context. In its setting it served to indicate the importance of freedom
of speech to a free society but also to emphasize that its exercise must
be compatible with the preservation of other freedoms essential to a
democracy and guaranteed by our Constitution. When those other
attributes of a democracy are threatened by speech, the Constitution
does not deny power to the states to curb it."[176]
The second question, in more definite terms, is whether freedom of
speech and press occupies a "preferred position" in the constitutional
hierarchy of values so that legislation restrictive of it is
presumptively unconstitutional. An important contribution to the
affirmative view on this point is the following passage from an opinion
of Justice Cardozo written in 1937: "One may say that it is the matrix,
the indispensable condition, of nearly every other form of freedom.
* * * So it has come about that the domain of liberty, withdrawn by the
Fourteenth Amendment from encroachment by the states, has been enlarged
by latter-day judgments to include liberty of the mind as well as
liberty of action. The extension became, indeed, a logical imperative
when once it was recognized, as long ago it was, that liberty is
something more than exemption from physical restraint, and that even in
the field of substantive rights and duties the legislative judgment, if
oppressive and arbitrary, may be overridden by the courts."[177]
Touching on the same subject a few months later, Chief Justice Stone
suggested that: "There may be narrower scope for operation of the
presumption of constitutionality when legislation appears on its face to
be within a specific prohibition of the Constitution, such as those of
the first ten amendments, which are deemed equally specific when held to
be embraced within the Fourteenth." And again: "It is unnecessary to
consider now whether legislation which restricts those political
processes which can ordinarily be expected to bring about repeal of
undesirable legislation, is to be subjected to more exacting judicial
scrutiny under the general prohibitions of the Fourteenth Amendment than
are most other types of legislation."[178] But the strongest assertion
of this position occurs in Justice Rutledge's opinion for a sharply
divided Court in Thomas _v._ Collins.[179] He says: "The case confronts
us again with the duty our system places on this Court to say where the
individual's freedom ends and the State's power begins. Choice on that
border, now as always delicate, is perhaps more so where the usual
presumption supporting legislation is balanced by the preferred place
given in our scheme to the great, the indispensable democratic freedoms
secured by the First Amendment. * * * That priority gives these
liberties a sanctity and a sanction not permitting dubious intrusions.
And it is the character of the right, not of the limitation, which
determines what standard governs the choice. * * * For these reasons any
attempt to restrict those liberties must be justified by clear public
interest, threatened not doubtfully or remotely, but by clear and
present danger. The rational connection between the remedy provided and
the evil to be curbed, which in other contexts might support legislation
against attack on due process grounds, will not suffice. These rights
rest on firmer foundation. Accordingly, whatever occasion would restrain
orderly discussion and persuasion, at appropriate time and place, must
have clear support in public danger, actual or impending. Only the
gravest abuses, endangering paramount interests, give occasion for
permissible limitation. It is therefore in our tradition to allow the
widest room for discussion, the narrowest range for its restriction,
particularly when this right is exercised in conjunction with peaceable
assembly. It was not by accident or coincidence that the rights to
freedom in speech and press were coupled in a single guaranty with the
rights of the people peaceably to assemble and to petition for redress
of grievances. All these, though not identical, are inseparable. They
are cognate rights."[180] This was 1945. Four years later the
controlling wing of the Court, in sustaining a local ordinance, endorsed
a considerably less enthusiastic appraisal of freedom of speech and
press. Thus while alluding to "the preferred position of freedom of
speech in a society that cherishes liberty for all," Justice Reed went
on to say, that this "does not require legislators to be insensible to
claims by citizens to comfort and convenience. To enforce freedom of
speech in disregard of the rights of others would be harsh and arbitrary
in itself."[181] And Justice Frankfurter denied flatly the propriety of
the phrase "preferred position," saying: "This is a phrase that has
uncritically crept into some recent opinions of this Court. I deem it a
mischievous phrase, if it carries the thought, which it may subtly
imply, that any law touching communication is infected with presumptive
invalidity. It is not the first time in the history of constitutional
adjudication that such a doctrinaire attitude has disregarded the
admonition most to be observed in exercising the Court's reviewing power
over legislation, 'that it is a constitution we are expounding,'
M'Culloch _v._ Maryland, 4 Wheat. 316, 407. I say the phrase is
mischievous because it radiates a constitutional doctrine without
avowing it. Clarity and candor in these matters, so as to avoid gliding
unwittingly into error, make it appropriate to trace the history of the
phrase 'preferred position.'"[182] which Justice Frankfurter then
proceeded to do. Justice Jackson also protested: "We cannot," he said,
"give some constitutional rights a preferred position without relegating
others to a deferred position."[183]
The third question concerns the quality and purpose of the speech which
the Constitution aims to protect. In 1949, Justice Douglas speaking for
a divided Court returned the following robustious answer to this
question: "* * * a function of free speech under our system of
government is to invite dispute. It may indeed best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger. Speech is
often provocative and challenging. It may strike at prejudices and
preconceptions and have profound unsettling effects as it presses for
acceptance of an idea. That is why freedom of speech, though not
absolute, Chaplinsky _v._ New Hampshire, supra, pp. 571-572, is
nevertheless protected against censorship or punishment, unless shown
likely to produce a clear and present danger of a serious substantive
evil that rises far above public inconvenience, annoyance, or
unrest."[184] But early in 1951 Justice Jackson, in a dissenting
opinion, urges the Court to review its entire position in the light of
the proposition that "the purpose of constitutional protection of
freedom of speech is to foster peaceful interchange of all manner of
thoughts, information and ideas," that "its policy is rooted in faith of
the force of reason."[185] He considers that the Court has been striking
"rather blindly at permit systems which indirectly may affect First
Amendment freedom." He says: "Cities throughout the country have adopted
the permit requirement to control private activities on public streets
and for other purposes. The universality of this type of regulation
demonstrates a need and indicates widespread opinion in the profession
that it is not necessarily incompatible with our constitutional
freedoms. Is everybody out of step but this Court? * * * It seems
hypercritical to strike down local laws on their faces for want of
standards when we have no standards. And I do not find it required by
existing authority. I think that where speech is outside of
constitutional immunity the local community or the State is left a large
measure of discretion as to the means for dealing with it."[186] This
diversity of viewpoint on the Court touching the above questions became
of importance when, recently, the Court was faced with the problem of
the relation of freedom of speech to the enumerated powers of the
National Government, in contrast to the indefinite residual powers of
the States.
TAXATION
The Supreme Court, citing the fact that the American Revolution "really
began when * * * that government (of England) sent stamps for newspaper
duties to the American colonies" has been alert to the possible uses of
taxation as a method of suppressing objectionable publications.[187]
Persons engaged in the dissemination of ideas are, to be sure, subject
to ordinary forms of taxation in like manner as other persons.[188] With
respect to license or privilege taxes, however, they stand on a
different footing. Their privilege is granted by the Constitution and
cannot be withheld by either State or Federal Government. Hence a
license tax measured by gross receipts for the privilege of engaging in
the business of publishing advertising in any newspaper or other
publication was held invalid[189] and flat license fees levied and
collected as a pre-condition to the sale of religious books and
pamphlets have also been set side.[190]
FEDERAL RESTRAINTS ON FREEDOM OF SPEECH AND PRESS
Regulations of Business and Labor Activities
The application to newspapers of the Anti-Trust Laws,[191] the National
Labor Relations Act,[192] or the Fair Labor Standards Act,[193] does not
abridge the freedom of the press. In Gompers _v._ Bucks Stove and Range
Co.,[194] the Supreme Court unanimously held that a court of equity may
enjoin continuance of a boycott, despite the fact that spoken or written
speech was used as an instrumentality by which the boycott was made
effective. "In the case of an unlawful conspiracy, the agreement to act
in concert when the signal is published gives the words 'Unfair,' 'We
Don't Patronize,' or similar expressions, a force not inhering in the
words themselves, and therefore exceeding any possible right of speech
which a single individual might have. Under such circumstances they
become what have been called 'verbal acts,' and as much subject to
injunction as the use of any other force whereby property is unlawfully
damaged."[195] A cognate test has been applied in determining when
communications by an employer constitute an unfair labor practice which
may be forbidden or penalized under the National Labor Relations Act
without infringing freedom of speech. In Labor Board _v._ Virginia Power
Co.,[196] the Court held that the sanctions of the act might be imposed
upon an employer for the protection of his employees, where his conduct
"though evidenced in part by speech, * * * (amounted) to coercion within
the meaning of the act."[197] In the opinion of the Court, Justice
Murphy stated, "The mere fact that language merges into a course of
conduct does not put that whole course without the range of otherwise
applicable administrative power. In determining whether the Company
actually interfered with, restrained, and coerced its employees, the
Board has a right to look at what the Company has said, as well as what
it has done."[198] But the constitutionality of legislation prohibiting
the publication by corporations and unions in the regular course of
conducting their affairs of periodicals advising their members,
stockholders or customers of danger or advantage to their interest from
the adoption of measures or the election to office of men espousing such
measures has been declared by the Court to be open to gravest
doubt.[199]
REGULATION OF POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES
The leading case touching this subject is Ex parte Curtis, decided
seventy years ago.[200] Here was sustained an act of Congress which
prohibited, under penalties, certain categories of officers of the
United States from requesting, giving to, or receiving from, any other
officer, money or property or other thing of value for political
purposes.[201] Two generations later was enacted the so-called Hatch
Act[202] which, while making some concessions to freedom of expression
on matters political by employees of the government, forbids their
active participation in political management and political campaigns.
The act was sustained against objections based on the Bill of
Rights;[203] while an amendment to it the effect of which is to diminish
the amount of a federal grant-in-aid of the construction of highways in
a State which fails to remove from office "one found by the United
States Civil Service Commission to have taken active part in political
management or in political campaigns while a member of the state highway
commission," was held not to violate Amendment X.[204]
LEGISLATION PROTECTIVE OF THE ARMED FORCES AND OF THE WAR POWER
The Federal Government may punish utterances which obstruct its
recruiting or enlistment service, cause insubordination in the armed
forces, encourage resistance to government in the prosecution of war, or
impede the production of munitions and other essential war
material.[205] The only issue which has divided the Court with regard to
such speech has been the degree of danger which must exist before it may
be punished. The recent decision in Dennis _v._ United States
diminishes, if it does not eliminate, this issue.[206]
LOYALTY REGULATIONS: THE DOUDS CASES
"Section 9 (h) of the Labor Management Relations Act requires, as a
condition of a union's utilizing the opportunities afforded by the act,
each of its officers to file an affidavit with the National Labor
Relations Board (1) that he is not a member of the Communist Party or
affiliated with such party, and (2) that he does not believe in, and is
not a member of or supports any organization that believes in or teaches
the overthrow of the United States Government by force or by any illegal
or unconstitutional methods." The statute also makes it a criminal
offense to make willfully or knowingly any false statement in such an
affidavit.[207] In American Communications Association, C.I.O. et al.
_v._ Douds[208] five of the six Justices participating sustained the
requirement (1) and three Justices sustained the requirement (2)
against the objection that the act exceeded Congress's power over
interstate commerce and infringed freedom of speech and the rights of
petition and assembly; and in Osman _v._ Douds[209] the same result was
reached by a Court in which only Justice Clark did not participate. In
the end only Justice Black condemned requirement (1), while the Court
was evenly divided as to requirement (2). In the course of his opinion
for the controlling wing of the Court, Chief Justice Vinson said: "The
attempt to apply the term, 'clear and present danger,' as a mechanical
test in every case touching First Amendment freedoms, without regard to
the context of its application, mistakes the form in which an idea was
cast for the substance of the idea * * * the question with which we are
here faced is not the same one that Justices Holmes and Brandeis found
convenient to consider in terms of clear and present danger.
Government's interest here is not in preventing the dissemination of
Communist doctrine or the holding of particular beliefs because it is
feared that unlawful action will result therefrom if free speech is
practiced. Its interest is in protecting the free flow of commerce from
what Congress considers to be substantial evils of conduct that are not
the products of speech at all. * * * The contention of petitioner * * *
that this Court must find that political strikes create a clear and
present danger to the security of the Nation or of widespread industrial
strife in order to sustain Sec. 9 (h) similarly misconceives the purpose
that phrase was intended to serve. In that view, not the relative
certainty that evil conduct will result from speech in the immediate
future, but the extent and gravity of the substantive evil must be
measured by the 'test' laid down in the _Schenck Case_."[210] In thus
balancing the gravity of the interest protected by legislation from
harmful speech against the demands of the clear and present danger rule
the Court paved the way for its decision a year later in Dennis _v._
United States.
THE CASE OF THE ELEVEN COMMUNISTS
Dennis _v._ United States[211] involves the following legislation:
"Section 2. (a) It shall be unlawful for any person--
"(1) to knowingly or willfully advocate, abet, advise, or teach the
duty, necessity, desirability, or propriety of overthrowing or
destroying any government in the United States by force or violence, or
by the assassination of any officer of any such government;
"(2) with the intent to cause the overthrow or destruction of any
government in the United States, to print, publish, edit, issue,
circulate, sell, distribute, or publicly display any written or printed
matter advocating, advising, or teaching the duty, necessity,
desirability, or propriety of overthrowing or destroying any government
in the United States by force or violence;
"(3) to organize or help to organize any society, group, or assembly of
persons who teach, advocate, or encourage the overthrow or destruction
of any government in the United States by force or violence; or to be or
become a member of, or affiliate with, any such society, group, or
assembly of persons, knowing the purposes thereof.
"(b) For the purposes of this section, the term 'government in the
United States' means the Government of the United States, the government
of any State, Territory, or possession of the United States, the
government of the District of Columbia, or the government of any
political subdivision of any of them."[212]
The trial court had ruled that clause (2) of the act qualified both the
other clauses; and this construction was endorsed by the Supreme Court.
The judgment of the Court sustaining the convictions against objections
raised under Amendment I was supported by three different opinions.
Chief Justice Vinson, speaking also for Justices Reed, Burton and Minton
emphasized the substantial character of the Government's interest in
preventing its own overthrow by force. "Indeed," said he, "this is the
ultimate value of any society, for if a society cannot protect its very
structure from armed internal attack, it must follow that no subordinate
value can be protected."[213] The opinion continues: "If, then, this
interest may be protected, the literal problem which is presented is
what has been meant by the use of the phrase 'clear and present danger'
of the utterances bringing about the evil within the power of Congress
to punish. Obviously, the words cannot mean that before the Government
may act, it must wait until the _putsch_ is about to be executed, the
plans have been laid and the signal is awaited. If Government is aware
that a group aiming at its overthrow is attempting to indoctrinate its
members and to commit them to a course whereby they will strike when the
leaders feel the circumstances permit, action by the Government is
required. The argument that there is no need for Government to concern
itself, for Government is strong, it possesses ample powers to put down
a rebellion, it may defeat the revolution with ease needs no answer. For
that is not the question. Certainly an attempt to overthrow the
Government by force, even though doomed from the outset because of
inadequate numbers or power of the revolutionists, is a sufficient evil
for Congress to prevent. The damage which such attempts create both
physically and politically to a nation makes it impossible to measure
the validity in terms of the probability of success or the immediacy of
a successful attempt."[214] The Chief Justice concluded this part of his
opinion by quoting from Chief Judge Learned Hand's opinion for the
Circuit Court of Appeals in the same case, as follows: "'In each case
[courts] must ask whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free speech as is necessary to
avoid the danger.'"[215] In short, if the evil legislated against is
serious enough, advocacy of it in order to be punishable does not have
to be attended by a clear and present danger of success.
But at this point the Chief Justice appears to recoil from this abrupt
dismissal of the clear and present danger formula for the more serious
cases, and he makes a last moment effort to rescue the babe that he has
tossed out with the bathwater. He says: "As articulated by Chief Judge
Hand, it is as succinct and inclusive as any other we might devise at
this time. It takes into consideration those factors which we deem
relevant, and relates their significances. More we cannot expect from
words. Likewise, we are in accord with the court below, which affirmed
the trial court's finding that the requisite danger existed. The mere
fact that from the period 1945 to 1948 petitioners' activities did not
result in an attempt to overthrow the Government by force and violence
is of course no answer to the fact that there was a group that was ready
to make the attempt. The formation by petitioners of such a highly
organized conspiracy, with rigidly disciplined members subject to call
when the leaders, these petitioners, felt that the time had come for
action, coupled with the inflammable nature of world conditions, similar
uprisings in other countries, and the touch-and-go nature of our
relations with countries with whom petitioners were in the very least
ideologically attuned, convince us that their convictions were justified
on this score. And this analysis disposes of the contention that a
conspiracy to advocate, as distinguished from the advocacy itself,
cannot be constitutionally restrained, because it comprises only the
preparation. It is the existence of the conspiracy which creates the
danger."[216] His final position seems to be that, after all, the
question is one for judicial discretion. "When facts are found that
establish the violation of a statute, the protection against conviction
afforded by the First Amendment is a matter of law. The doctrine that
there must be a clear and present danger of a substantive evil that
Congress has a right to prevent is a judicial rule to be applied as a
matter of law by the courts."[217]
Justice Frankfurter's lengthy concurring opinion premises "the right of
a government to maintain its existence--self preservation." This, he
says, is "the most pervasive aspect of sovereignty," citing The
Federalist No. 41, and certain cases.[218] A little later he raises the
question, "But how are competing interests to be assessed?" and answers:
"Full responsibility for the choice cannot be given to the courts.
Courts are not representative bodies. They are not designed to be a good
reflex of a democratic society. Their judgment is best informed, and
therefore most dependable, within narrow limits. Their essential quality
is detachment, founded on independence. History teaches that the
independence of the judiciary is jeopardized when courts become
embroiled in the passions of the day and assume primary responsibility
in choosing between competing political, economic and social pressures.
Primary responsibility for adjusting the interests which compete in the
situation before us of necessity belongs to the Congress. The nature of
the power to be exercised by this Court has been delineated in decisions
not charged with the emotional appeal of situations such as that now
before us. We are to set aside the judgment of those whose duty it is to
legislate only if there is no reasonable basis for it."[219] But a
difficulty exists, to wit, in the clear and present danger doctrine. He
says: "In all fairness, the argument [of defendants] cannot be met by
reinterpreting the Court's frequent use of 'clear' and 'present' to mean
an entertainable 'probability.' In giving this meaning to the phrase
'clear and present danger,' the Court of Appeals was fastidiously
confining the rhetoric of opinions to the exact scope of what was
decided by them. We have greater responsibility for having given
constitutional support, over repeated protests, to uncritical
libertarian generalities. Nor is the argument of the defendants
adequately met by citing isolated cases. * * * The case for the
defendants requires that their conviction be tested against the entire
body of our relevant decisions."[220]
Turning then to the cases Justice Frankfurter exclaims at last: "I must
leave to others the ungrateful task of trying to reconcile all these
decisions."[221] The nearest precedent was Gitlow _v._ New York.[222]
Here "we put our respect for the legislative judgment in terms which, if
they were accepted here, would make decision easy. * * * But it would be
disingenuous to deny that the dissent in _Gitlow_ has been treated with
the respect usually accorded a decision."[223] But the case at bar was a
horse of a different color. "In contrast, there is ample justification
for a legislative judgment that the conspiracy now before us is a
substantial threat to national order and security,"[224] which seems to
be in essential agreement with the position of the Chief Justice and his
three associates. Justice Frankfurter concludes with a homily on the
limitations which the nature of judicial power imposes, on the power of
judicial review. He says: "Can we then say that the judgment Congress
exercised was denied it by the Constitution? Can we establish a
constitutional doctrine which forbids the elected representatives of the
people to make this choice? Can we hold that the First Amendment
deprives Congress of what it deemed necessary for the Government's
protection? To make validity of legislation depend on judicial reading
of events still in the womb of time--a forecast, that is, of the outcome
of forces at best appreciated only with knowledge of the topmost secrets
of nations--is to charge the judiciary with duties beyond its equipment.
We do not expect courts to pronounce historic verdicts on bygone events.
Even historians have conflicting views to this day on the origin and
conduct of the French Revolution. It is as absurd to be confident that
we can measure the present clash of forces and their outcome as to ask
us to read history still enveloped in clouds of controversy. * * * The
distinction which the Founders drew between the Court's duty to pass on
the power of Congress and its complementary duty not to enter directly
the domain of policy is fundamental. But in its actual operation it is
rather subtle, certainly to the common understanding. Our duty to
abstain from confounding policy with constitutionality demands
preceptive humility as well as self-restraint in not declaring
unconstitutional what in a judge's private judgment is unwise and even
dangerous."[225]
Justice Jackson's opinion emphasizes the conspiratorial element of the
case, and is flatfooted in rejecting the 'clear and present danger' test
for this type of case. He writes: "The 'clear and present danger' test
was an innovation by Mr. Justice Holmes in the _Schenck Case_,
reiterated and refined by him and Mr. Justice Brandeis in later cases,
all arising before the era of World War II revealed the subtlety and
efficacy of modernized revolutionary techniques used by totalitarian
parties. In those cases, they were faced with convictions under
so-called criminal syndicalism statutes aimed at anarchists but which,
loosely construed, had been applied to punish socialism, pacifism, and
left-wing ideologies, the charges often resting on far-fetched
inferences which, if true, would establish only technical or trivial
violations. They proposed 'clear and present danger' as a test for the
sufficiency of evidence in particular cases. I would save it,
unmodified, for application as a 'rule of reason' in the kind of case
for which it was devised. When the issue is criminality of a hot-headed
speech on a street corner, or circulation of a few incendiary pamphlets
or parading by some zealots behind a red flag, or refusal of a handful
of school children to salute our flag, it is not beyond the capacity of
the judicial process to gather, comprehend, and weigh the necessary
materials for decision whether it is a clear and present danger of
substantive evil or a harmless letting off of steam. It is not a
prophecy, for the danger in such cases has matured by the time of trial
or it was never present. The test applies and had meaning where a
conviction is sought to be based on a speech or writing which does not
directly or explicitly advocate a crime but to which such tendency is
sought to be attributed by construction or by implication from external
circumstances. The formula in such cases favors freedoms that are vital
to our society, and, even if sometimes applied too generously, the
consequences cannot be grave. But its recent expansion has extended, in
particular to Communists, unprecedented immunities. Unless we are to
hold our Government captive in a judge-made verbal trap, we must
approach the problem of a well-organized, nation-wide conspiracy, such
as I have described, as realistically as our predecessors faced the
trivialities that were being prosecuted until they were checked with a
rule of reason. I think reason is lacking for applying that test to this
case."[226] And again, "What really is under review here is a conviction
of conspiracy, after a trial for conspiracy, on an indictment charging
conspiracy, brought under a statute outlawing conspiracy. With due
respect to my colleagues, they seem to me to discuss anything under the
sun except the law of conspiracy. One of the dissenting opinions even
appears to chide me for 'invoking the law of conspiracy.' As that is the
case before us, it may be more amazing that its reversal can be proposed
without even considering the law of conspiracy. The Constitution does
not make conspiracy a civil right. The Court has never before done so
and I think it should not do so now. Conspiracies of labor unions, trade
associations, and news agencies have been condemned, although
accomplished, evidenced and carried out, like the conspiracy here,
chiefly by letter-writing, meetings, speeches and organization. Indeed,
this Court seems, particularly in cases where the conspiracy has
economic ends, to be applying its doctrines with increasing severity.
While I consider criminal conspiracy a dragnet device capable of
perversion into an instrument of injustice in the hands of a partisan or
complacent judiciary, it has an established place in our system of law,
and no reason appears for applying it only to concerted action claimed
to disturb interstate commerce and withholding it from those claimed to
undermine our whole Government. * * *"[227]
The dissenters were Justices Black and Douglas. The former reiterated
his position in Bridges _v._ California; the latter italicized Justice
Brandeis' dictum in the Whitney Case: "If there be time to expose
through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not
enforced silence."[228] The answer would seem to be that education had
not in fact prevented the formation of the conspiracy for entering into
which the eleven defendants were convicted. If that be deemed a danger
at all, it was certainly a clear and present one. Both dissenters, in
fact, ignore the conspiracy element.
SUBVERSIVE ORGANIZATIONS
In a series of cases[229] in which certain organizations sued the
Attorney General for declaratory or injunctive relief looking to the
deletion of their names from a list of organizations designated by him
to be subversive, the Court reversed holdings of the courts below which
had denied relief. Two Justices thought the order not within the
President's Executive Order No. 9835, which lays down a procedure for
the determination of the loyalty of federal employees or
would-be-employees. Justice Black thought the Attorney General had
violated Amendment I and that the President's order constituted a Bill
of Attainder. He and Justices Frankfurter and Jackson also held that the
Attorney General had violated due process of law in having failed to
give the petitioners notice and hearing. Justice Reed, with the
concurrence of the Chief Justice and Justice Minton, dissented,
asserting that the action of the Court constituted an interference with
the discretion of the executive in the premises.
RECENT STATE LEGISLATION
Loyalty Tests
The decision in Dennis _v._ United States,[230] taken in conjunction
with those in the two Douds[231] Cases, put the clear and present danger
rule on the defensive in the field of federal legislation. Substantially
contemporaneous holdings in the field of state action may reflect a
similar trend. In Garner _v._ Los Angeles Board,[232] the Court
sustained the right of a municipality to bar from employment persons who
advise, advocate, or teach the violent overthrow of the government, or
who are members of, or become affiliated with any group doing so, and to
exact a loyalty oath of its employees. In Adler _v._ Board of
Education[233] the Court sustained the Civil Service Law of New York as
implemented by the so-called Feinberg Law of 1949.[234] The former makes
ineligible in any public school any member of an organization advocating
the overthrow of government by force, violence, or any unlawful means.
The Feinberg Law requires the Board of Regents of the State (1) to adopt
and enforce rules for the removal of ineligible persons; (2) to
promulgate a list of banned organizations; (3) to make membership in
any such organization prima facie evidence of disqualification for
employment in the public schools. Referring to the Garner Case above,
Justice Minton, for the Court, said: "We adhere to that case. A teacher
works in a sensitive area in the schoolroom. There he shapes the
attitude of young minds towards the society in which they live. In this,
the state has a vital concern. It must preserve the integrity of the
schools. That the school authorities have the right and the duty to
screen the officials, teachers, and employees as to their fitness to
maintain the integrity of the schools as a part of ordered society,
cannot be doubted. One's associates, past and present, as well as one's
conduct, may properly be considered in determining fitness and loyalty.
From time immemorial, one's reputation has been determined in part by
the company he keeps. In the employment of officials and teachers of the
school system, the state may very properly inquire into the company they
keep, and we know of no rule, constitutional or otherwise, that prevents
the state, when determining the fitness and loyalty of such persons,
from considering the organizations and persons with whom they
associate."[235]
Group Libel
In 1952 in Beauharnais _v._ Illinois[236] the Court sustained an
Illinois statute which makes it a crime to exhibit in a public place any
publication which "portrays depravity, criminality, unchastity, or lack
of virtue of a class of citizens, of any race, color, creed or religion"
or which "exposes the citizens of any race, color, creed or religion to
contempt, derision, or obloquy." The act was treated by the State
Supreme Court as a form of criminal libel, with the result that defense
by truth of the utterance was not under Illinois law available unless
the publication was also shown to have been made "with good motives and
with justifiable ends." So construed, the Court held, the Act did not
violate liberty of speech and press as guaranteed to the States by
Amendment XIV. Said Justice Frankfurter:
"If an utterance directed at an individual may be the object of criminal
sanctions, we cannot deny to a State power to punish the same utterance
directed at a defined group, unless we can say that this is a wilful and
purposeless restriction unrelated to the peace and well-being of the
State."[237] Pointing then to Illinois' bad record in the matter of race
riots, he continued: "In the face of this history and its frequent
obligato of extreme racial and religious propaganda, we would deny
experience to say that the Illinois legislature was without reason in
seeking ways to curb false or malicious defamation of racial and
religious groups, made in public places and by means calculated to have
a powerful emotional impact on those to whom it was presented. 'There
are limits to the exercise of these liberties [of speech and of the
press]. The danger in these times from the coercive activities of those
who in the delusion of racial or religious conceit would incite violence
and breaches of the peace in order to deprive others of their equal
right to the exercise of their liberties, is emphasized by events
familiar to all. These and other transgressions of those limits the
States appropriately may punish.' * * * It is not within our competence
to confirm or deny claims of social scientists as to the dependence of
the individual on the position of his racial or religious group in the
community. It would, however, be arrant dogmatism, quite outside the
scope of our authority in passing on the powers of a State, for us to
deny that the Illinois legislature may warrantably believe that a man's
job and his educational opportunities and the dignity accorded him may
depend as much on the reputation of the racial and religious group to
which he willy-nilly belongs, as on his own merits. This being so, we
are precluded from saying that speech concededly punishable when
immediately directed at individuals cannot be outlawed if directed at
groups with whose position and esteem in society the affiliated
individual may be inextricably involved."[238]
CENSORSHIP OF THE MAILS: FRAUD ORDER
By legislation adopted in 1879 and 1934 Congress has specified certain
conditions upon which a publication shall be admitted to the valuable
second-class mailing privilege, one of which provides as follows: Except
as otherwise provided by law, the conditions upon which a publication
shall be admitted to the second-class are as follows: "* * * _Fourth._
It must be originated and published for the dissemination of information
of a public character, or devoted to literature, the sciences, arts, or
some special industry, and having a legitimate list of subscribers;
* * * nothing herein contained shall be so construed as to admit to the
second-class rate regular publications designed primarily for
advertising purposes, or for free circulation, or for circulation at
nominal rates."[239] In Hannegan _v._ Esquire, Inc.,[240] the Court
sustained an injunction against an order of the Postmaster General which
suspended a permit to Esquire Magazine on the ground that it did not
"contribute to the public good and the public welfare." Said Justice
Douglas for the Court: "* * * a requirement that literature or art
conform to some norm prescribed by an official smacks of an ideology
foreign to our system. The basic values implicit in the requirements of
the Fourth condition can be served only by uncensored distribution of
literature. From the multitude of competing offerings the public will
pick and choose. What seems to one to be trash may have for others
fleeting or even enduring values. But to withdraw the second-class rate
from this publication today because its contents seemed to one official
not good for the public would sanction withdrawal of the second-class
rate tomorrow from another periodical whose social or economic views
seemed harmful to another official. The validity of the obscenity laws
is recognized that the mails may not be used to satisfy all tastes, no
matter how perverted. But Congress has left the Postmaster General with
no power to prescribe standards for the literature or the art which a
mailable periodical disseminates."[241] In Donaldson _v._ Read
Magazine,[242] however, the Court sustained a Court order forbidding the
delivery of mail and money orders to a magazine conducting a puzzle
contest which the Postmaster-General had found to be fraudulent. Freedom
of the press, said the Court, does not include the right to raise money
by deception of the public.
The Rights of Assembly and Petition
The right of petition took its rise from the modest provision made for
it in chapter 61 of Magna Carta (1215).[243] To this meagre beginning
Parliament itself and its procedures in the enactment of legislation,
the equity jurisdiction of the Lord Chancellor, and proceedings against
the Crown by "petition of right" are all in some measure traceable.
Thus, while the King summoned Parliament for the purpose of supply, the
latter--but especially the House of Commons--petitioned the King for a
redress of grievances as its price for meeting the financial needs of
the Monarch; and as it increased in importance it came to claim the
right to dictate the form of the King's reply, until in 1414 Commons
boldly declared themselves to be "as well assenters as petitioners." Two
hundred and fifty years later, in 1669, Commons further resolved that
every commoner in England possessed "the inherent right to prepare and
present petitions" to it "in case of grievance," and of Commons "to
receive the same" and to judge whether they were "fit" to be received.
Finally Chapter 5 of the Bill of Rights of 1689 asserted the right of
the subjects to petition the King and "all commitments and prosecutions
for such petitioning to be illegal."[244]
Historically, therefore, the right of petition is the primary right, the
right peaceably to assemble a subordinate and instrumental right, as if
Amendment I read; "the right of the people peaceably to assemble" _in
order to_ "petition the government."[245] Today, however, the right of
peaceable assembly is, in the language of the Court, "cognate to those
of free speech and free press and is equally fundamental * * * [It] is
one that cannot be denied without violating those fundamental principles
of liberty and justice which lie at the base of all civil and political
institutions,--principles which the Fourteenth Amendment embodies in the
general terms of its due process clause. * * * The holding of meetings
for peaceable political action cannot be proscribed. Those who assist in
the conduct of such meetings cannot be branded as criminals on that
score. The question * * * is not as to the auspices under which the
meeting is held but as to its purposes; not as to the relation of the
speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects."[246] Furthermore,
the right of petition has expanded. It is no longer confined to demands
for "a redress of grievances," in any accurate meaning of these words,
but comprehends demands for an exercise by the government of its powers
in furtherance of the interests and prosperity of the petitioners, and
of their views on politically contentious matters.
RESTRAINTS ON THE RIGHT OF PETITION
The right of petition recognized by Amendment I first came into
prominence in the early 1830's, when petitions against slavery in the
District of Columbia began flowing into Congress in a constantly
increasing stream, which reached its climax in the winter of 1835.
Finally on January 28, 1840, the House adopted as a standing rule: "That
no petition, memorial, resolution, or other paper praying the abolition
of slavery in the District of Columbia, or any State or Territories of
the United States in which it now exists, shall be received by this
House, or entertained in any way whatever." Thanks to the efforts of
John Quincy Adams this rule was repealed five years later, after Adams'
death.[247] For many years now the rules of the House of Representatives
have provided that members having petitions to present may deliver them
to the Clerk and the petitions, except such as, in the judgment of the
Speaker, are of an obscene or insulting character, shall be entered on
the Journal and the Clerk shall furnish a transcript of such record to
the official reporters of debates for publication in the Record.[248]
Even so petitions for the repeal of the espionage and sedition laws and
against military measures for recruiting resulted, in World War I, in
imprisonment.[249] Processions for the presentation of petitions in the
United States have not been particularly successful. In 1894 General
Coxey of Ohio organized armies of unemployed to march on Washington and
present petitions, only to see their leaders arrested for unlawfully
walking on the grass of the capitol. The march of the veterans on
Washington in 1932 demanding bonus legislation was defended as an
exercise of the right of petition. The administration, however, regarded
it as a threat against the constitution and called out the army to expel
the bonus marchers and burn their camps. For legal regulation of
lobbying activities, _see_ below.
THE CRUIKSHANK CASE
The right of assembly was first passed upon by the Supreme Court in 1876
in the famous case of United States _v._ Cruikshank et al.[250] The case
arose on indictments under section 6 of the so-called Enforcement Act of
May 30, 1870,[251] which read as follows: "That if two or more persons
shall band or conspire together, or go in disguise upon the public
highway, or upon the premises of another, with intent to violate any
provision of this act, or to injure, oppress, threaten, or intimidate
any citizen, with intent to prevent or hinder his free exercise and
enjoyment of any right or privilege granted or secured to him by the
Constitution or laws of the United States, or because of his having
exercised the same, such persons shall be held guilty of felony, etc."
The indictments charged the defendants with having deprived certain
citizens of their right to assemble together peaceably with other
citizens "for a peaceful and lawful purpose." The court held that this
language was insufficient inasmuch as it did not specify that the
attempted assembly was for a purpose connected with the National
Government. As to the right of assembly the Court, speaking by Chief
Justice Waite, went on to declare: "The right of the people peaceably to
assemble for the purpose of petitioning Congress for a redress of
grievances, or for anything else connected with the powers or the duties
of the National Government, is an attribute of national citizenship,
and, as such, under the protection of, and guaranteed by, the United
States. The very idea of a government, republican in form, implies a
right on the part of its citizens to meet peaceably for consultation in
respect to public affairs and to petition for a redress of grievances.
If it had been alleged in these counts that the object of the defendants
was to prevent a meeting for such a purpose, the case would have been
within the statute, and within the scope of the sovereignty of the
United States. Such, however, is not the case. The offence, as stated in
the indictment, will be made out, if it be shown that the object of the
conspiracy was to prevent a meeting for any lawful purpose
whatever."[252]
HAGUE _v._ COMMITTEE OF INDUSTRIAL ORGANIZATION
In this case[253] the question at issue was the validity of a Jersey
City ordinance requiring the obtaining of a permit for a public assembly
in or upon the public streets, highways, public parks, or public
buildings of the city and authorizing the director of public safety, for
the purpose of preventing riots, disturbances, or disorderly assemblage,
to refuse to issue a permit when after investigation of all the facts
and circumstances pertinent to the application he believes it to be
proper to refuse to issue a permit. Two Justices held that in the
circumstances of the case the ordinance violated the right of certain
citizens of the United States to assemble to discuss certain privileges
which they enjoyed as such, to wit, their rights and privileges under
the National Labor Relations Act.[254] Said Justice Roberts, expressing
this point of view: "The privilege of a citizen of the United States to
use the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not absolute,
but relative, and must be exercised in subordination to the general
comfort and convenience, and in consonance with peace and good order;
but it must not, in the guise of regulation, be abridged or denied. We
think the court below was right in holding the ordinance quoted in Note
1 void upon its face. It does not make comfort or convenience in the use
of streets or parks the standard of official action. It enables the
Director of Safety to refuse a permit on his mere opinion that such
refusal will prevent 'riots, disturbances or disorderly assemblage.' It
can thus, as the record discloses, be made the instrument of arbitrary
suppression of free expression of views on national affairs for the
prohibition of all speaking will undoubtedly 'prevent' such
eventualities. But uncontrolled official suppression of the privilege
cannot be made a substitute for the duty to maintain order in connection
with the exercise of the right."[255] Two other Justices invoked also
the due process clause of Amendment XIV, thereby claiming the right of
assembly for aliens as well as citizens. Said Justice Stone, who
expressed this view: "I think respondents' right to maintain it does not
depend on their citizenship and cannot rightly be made to turn on the
existence or non-existence of a purpose to disseminate information about
the National Labor Relations Act. It is enough that petitioners have
prevented respondents from holding meetings and disseminating
information whether for the organization of labor unions or for any
other lawful purpose."[256] Both Justices were in agreement that freedom
of speech and freedom of assembly were claimable only by natural
persons, and not by corporations.[257] Two Justices dissented on the
basis of Davis _v._ Massachusetts.[258]
RECENT CASES
In Bridges _v._ California[259] it was held that a telegram addressed to
the Secretary of Labor strongly criticizing the action of a State court
in a pending case was privileged under this amendment as an exercise of
the right of petition. In Thomas _v._ Collins[260] a statute requiring
registration before solicitation of union membership was found to
violate the right of peaceable assembly. But a closely divided Court
subsequently sustained an order of a State Employment Relations Board
forbidding work stoppages by the calling of special union meetings
during working hours.[261] Finally, a divided Court held June 4, 1951,
that a combination to break up by force and threats of force of a
meeting called for the purpose of adopting a resolution against the
Marshall Plan did not afford a right of action against the conspirators
under the Ku Klux Act of April 20, 1871.[262] While the complaint
alleged that the conspiracy was entered into for the purpose of
depriving the plaintiffs as citizens of the United States of their right
"peaceably to assemble for the purpose of discussing and communicating
upon national public issues," the Ku Klux Act was found not to extend
to violations of that right except by State acts depriving persons of
their rights under the Fourteenth Amendment. But the Court, perhaps
significantly, left open the question whether Congress can protect such
rights against private action. "It is not for this Court," remarked
Justice Jackson sententiously, "to compete with Congress or attempt to
replace it as the Nation's law-making body."[263]
LOBBYING AND THE RIGHT OF PETITION
Today lobbying is frequently regarded as the most important expression
of the right of petition. During the last half century lobbying has
reached tremendous proportions; and there have been four Congressional
investigations of such activities, the latest by a Committee of the
House of Representatives. Meantime, in 1946 Congress passed the Federal
Regulation of Lobbying Act, under which more than 2,000 lobbyists have
registered and 495 organizations report lobbying contributions and
expenditures.[264] Recently doubts have been cast upon the
constitutionality of this statute by two decisions of lower federal
courts sitting in the District of Columbia. According to the District
Court therein, to subject a person, whose "principal purpose * * * is to
aid" in the defeat or passage of legislation and who violates this Act
by failing to file a detailed accounting, to a penalty entailing a
three-year prohibition from lobbying is to deprive such person of his
constitutional rights of freedom of speech and petition.[265] Insofar as
Congress legitimately may regulate lobbying, its powers in relation
thereto have been declared not to extend to "indirect lobbying by the
pressure of public opinion on the Congress." The latter was deemed to be
"the healthy essence of the democratic process."[266]
Notes
[1] 268 U.S. 652 (1925).
[2] Ibid. 666.
[3] Fiske _v._ Kansas, 274 U.S. 380 (1927).
[4] Cantwell _v._ Connecticut, 310 U.S. 296 (1940).
[5] Near _v._ Minnesota, 283 U.S. 697 (1931).
[6] De Jonge _v._ Oregon, 299 U.S. 353 (1937).
[7] Annals of Congress, 434 (1789-1791).
[8] Records of the United States Senate, Sept. 9, 1789, United States
Archives, cited in Appellees Brief in McCollum _v._ Board of Education,
333 U.S. 203 (1948).
[9] Ibid.
[10] Ibid.
[11] Joseph Story, Commentaries on the Constitution, Sec. 1879 (1833).
[12] Ibid. Sec. 1874.
[13] Principles of Constitutional Law, 224-225, 3d ed. (1898).
[14] Saul K. Padover, The Complete Jefferson, 518-519 (1943).
[15] 98 U.S. 145 (1879).
[16] Ibid. 164. In his 2d Inaugural Address Jefferson expressed a very
different, and presumably more carefully considered, opinion upon the
purpose of Amendment I: "In matters of religion, I have considered that
its free exercise is placed by the Constitution independent of the
powers of of the general government." This was said three years after
the Danbury letter. 1 Messages and Papers of the Presidents, 379
(Richardson ed. 1896).
[17] Everson _v._ Board of Education, 330 U.S. 1 (1947).
[18] Ibid. 15, 16.
[19] McCollum _v._ Board of Education, 333 U.S. 203 (1948).
[20] Ibid. 212.
[21] 333 U.S. 203, 213 (1948).
[22] Ibid. 216-218. Justice Frankfurter's principal figure in the fight
against sectarianism is Horace Mann, who was secretary of the
Massachusetts Board of Education, 1837-1848. Mann, however, strongly
resented the charge that he was opposed to religious instruction in the
public schools. "It is true that Mr. Mann stood strongly for a 'type of
school with instruction adapted to democratic and national ends.' But it
is not quite just to him to contrast this type of school with the school
adapted to religious ends, without defining terms. Horace Mann was
opposed to sectarian doctrinal instruction in the schools, but he
repeatedly urged the teaching of the elements of religion common to all
of the Christian sects. He took a firm stand against the idea of a
purely secular education, and on one occasion said he was in favor of
religious instruction 'to the extremest verge to which it can be carried
without invading those rights of conscience which are established by the
laws of God, and guaranteed to us by the Constitution of the State.' At
another time he said that he regarded hostility to religion in the
schools as the greatest crime he could commit. Lest his name should go
down in history as that of one who had attempted to drive religious
instruction from the schools, he devoted several pages in his final
Report--the twelfth--to a statement in which he denied the charges of
his enemies." Raymond B. Culver, Horace Mann on Religion in the
Massachusetts Public Schools, 235 (1929).
[23] 333 U.S. 203, 222 ff. (1948).
[24] Ibid. 213.
[25] Ibid. 225-226.
[26] Ibid. 231.
[27] Ibid. 232, 234.
[28] 333 U.S. 244.
[29] Ibid., 253, 254.
[30] Zorach _v._ Clauson, 303 N.Y. 161, 168-169; 100 N.E. 2d 403 (1951).
[31] Zorach _v._ Clauson, 343 U.S. 306 (1952).
[32] Ibid., pp. 313-314. Justices Black, Frankfurter, and Jackson
dissented.
[33] Doremus _v._ Board of Education, 342 U.S. 429 (1952).
[34] Three dissenters, speaking through Justice Douglas, argued that,
since the New Jersey Supreme Court had taken the case and decided it on
its merits, the United States Supreme Court was bound to do the same.
Ibid. 435-436.
[35] Bradfield _v._ Roberts, 175 U.S. 291 (1899).
[36] Quick Bear _v._ Leupp, 210 U.S. 50 (1908).
[37] Cochran _v._ Louisiana State Board of Education, 281 U.S. 370
(1930).
[38] Everson _v._ Board of Education, 330 U.S. 1 (1947).
[39] 42 U.S.C.A. Sec. 1751-1760; 60 Stat. 230 (1940).
[40] Davis _v._ Benson, 133 U.S. 333, 342 (1890).
[41] Cantwell _v._ Connecticut, 310 U.S. 296, 303, 304 (1940).
[42] Pierce _v._ Society of Sisters of Holy Names, 268 U.S. 510 (1925).
[43] Reynolds _v._ United States, 98 U.S. 145, 166 (1879).
[44] Ibid. 167.
[45] Davis _v._ Beason, 133 U.S. 333, 345 (1890).
[46] Reynolds _v._ United States 98 U.S. 145 (1879); Davis _v._ Beason,
133 U.S. 333 (1890).
[47] 322 U.S. 78 (1944).
[48] Ibid. 89.
[49] 310 U.S. 296 (1940).
[50] Minersville School Dist. _v._ Gobitis, 310 U.S. 586 (1940).
[51] Jones _v._ Opelika, 316 U.S. 584 (1942).
[52] Jones _v._ Opelika, 319 U.S. 103 (1943); Murdock _v._ Pennsylvania,
319 U.S. 105 (1943).
[53] Board of Education _v._ Barnette, 319 U.S. 624 (1943). On the same
day the Court held that a State may not forbid the distribution of
literature urging and advising, on religious grounds, that citizens
refrain from saluting the flag. Taylor _v._ Mississippi, 319 U.S. 583
(1943).
[54] Martin _v._ Struthers, 319 U.S. 141 (1943).
[55] Prince _v._ Massachusetts, 321 U.S. 158 (1944).
[56] 334 U.S. 558 (1948).
[57] Kovacs _v._ Cooper, 336 U.S. 77 (1949).
[58] Kunz _v._ New York, 340 U.S. 290 (1951).
[59] Ibid. 314.
[60] Niemotko _v._ Maryland, 340 U.S. 268 (1951).
[61] Feiner _v._ New York, 340 U.S. 315 (1951).
[62] _See_ p. 1285. [Transcriber's Note: There is no mention of the
Feiner case on p. 1285.]
[63] Arver _v._ United States, 245 U.S. 366 (1918).
[64] 293 U.S. 245 (1934).
[65] 325 U.S. 561 (1945). _cf._ Girouard _v._ United States, 328 U.S. 61
(1946) holding "an alien who is willing to take the oath of allegiance
and to serve in the army as a non-combatant but who, because of
religious scruples, is unwilling to bear arms in defense of this country
may be admitted to citizenship * * *", overruling United States _v._
Schwimmer, 279 U.S. 644 (1929) and United States _v._ Macintosh, 283
U.S. 605 (1931).
[66] 325 U.S. 561, 578 (1945).
[67] Commentaries, Vol. IV, 151-152.
[68] Justice Frankfurter in Dennis _v._ United States, 341 U.S. 494,
521-522 (1951).
[69] Ibid. 524; citing Robertson _v._ Baldwin, 165 U.S. 275, 281 (1897).
[70] Ibid. 524; citing Gompers _v._ United States, 233 U.S. 604, 610
(1914).
"While the courts have from an early date taken a hand in crystallizing
American conceptions of freedom of speech and press into law, it is
scarcely in the manner or to the extent which they are frequently
assumed to have done. The great initial problem in this realm of
constitutional liberty was to get rid of the common law of 'seditious
libel' which operated to put persons in authority beyond the reach of
public criticism. The first step in this direction was taken in the
famous, or infamous, Sedition Act of 1798, which admitted the defense of
truth in prosecution brought under it, and submitted the general issue
of defendant's guilt to the jury. But the substantive doctrine of
'seditious libel' the Act of 1798 still retained, a circumstance which
put several critics of President Adams in jail, and thereby considerably
aided Jefferson's election as President in 1800. Once in office,
nevertheless, Jefferson himself appealed to the discredited principle
against partisan critics. Writing his friend Governor McKean of
Pennsylvania in 1803 anent such critics, Jefferson said: 'The
federalists having failed in destroying freedom of the press by their
gag-law, seem to have attacked in an opposite direction; that is by
pushing its licentiousness and its lying to such a degree of
prostitution as to deprive it of all credit. * * * This is a dangerous
state of things, and the press ought to be restored to its credibility
if possible. The restraints provided by the laws of the States are
sufficient for this, if applied. And I have, therefore, long thought
that a few prosecutions of the most prominent offenders would have a
wholesome effect in restoring the integrity of the presses. Not a
general prosecution, for that would look like persecution; but a
selected one.' Works (Ford ed., 1905), IX 451-52.
"In the _Memorial Edition_ of Jefferson's works this letter is not
included; nor apparently was it known to the Honorable Josephus Daniels,
whose enthusiastic introduction to one of these volumes makes Jefferson
out to have been the father of freedom of speech and press in this
country, if not throughout the world. The sober truth is that it was
that archenemy of Jefferson and of democracy, Alexander Hamilton, who
made the greatest single contribution toward rescuing this particular
freedom as a political weapon from the coils and toils of the common
law, and that in connection with one of Jefferson's 'selected
prosecutions.' I refer to Hamilton's many-times quoted formula in the
Croswell case in 1804: 'The liberty of the press is the right to publish
with impunity, truth, with good motives, for justifiable ends though
reflecting on government, magistracy, or individuals.' People _v._
Croswell, 3 Johns (NY) 337. Equipped with this brocard our State courts
working in co-operation with juries, whose attitude usually reflected
the robustiousness of American political discussion before the Civil
War, gradually wrote into the common law of the States the principle of
'qualified privilege,' which is a notification to plaintiffs in libel
suits that if they are unlucky enough to be officeholders or office
seekers, they must be prepared to shoulder the almost impossible burden
of showing defendant's 'special malice.' Cooley, _Constitutional
Limitations_, Chap. XII: Samuel A. Dawson, _Freedom of the Press, A
Study of the Doctrine of 'Qualified Privilege'_ (Columbia Univ. Press,
1924)." Edward S. Corwin, _Liberty Against Government_. 157-159 fn.
(L.S.U. Press, 1948).
[71] Patterson _v._ Colorado, 205 U.S. 454, 462 (1907).
[72] Ibid. 461
[73] Prudential Ins. Co. _v._ Cheek, 259 U.S. 530, 543 (1922).
[74] Schenck _v._ United States, 249 U.S. 47 (1919); and _see_ below.
[Transcriber's Note: Reference is to Footnote 75, below.]
[75] _See_ Justice Brandeis concurring opinion in Whitney _v._
California, 274 U.S. 357 (1927); and cases reviewed below.
[76] Fiske _v._ Kansas, 274 U.S. 380 (1927).
[77] 133 U.S. 333 (1890).
[78] Ibid. 341-342.
[79] 236 U.S. 273 (1915).
[80] Fiske _v._ Kansas, 274 U.S. 380 (1927).
[81] Stromberg _v._ California, 283 U.S. 359 (1931).
[82] De Jonge _v._ Oregon, 299 U.S. 353 (1937).
[83] 249 U.S. 47 (1919).
[84] 40 Stat. 217, 219.
[85] 205 U.S. 454, 462 (1907).
[86] 249 U.S. 47, 51-52 (1919).
[87] 249 U.S. 204 (1919).
[88] Ibid. 206.
[89] 249 U.S. 211 (1919).
[90] Ibid. 215-216.
[91] 250 U.S. 616 (1919).
[92] Ibid. 627. It should be noted that Justice Holmes couples with his
invocation of the clear and present danger test in his dissent in this
case the contention that rightly construed the act of Congress involved
(The Espionage Act of May 16, 1918; 40 Stat. 553) required that
defendant's intent be specifically proved. He wrote: "I am aware of
course that the word intent as vaguely used in ordinary legal discussion
means no more than knowledge at the time of the act that the
consequences said to be intended will ensue. Even less than that will
satisfy the general principle of civil and criminal liability. A man may
have to pay damages, may be sent to prison, at common law might be
hanged, if at the time of his act he knew facts from which common
experience showed that the consequences would follow, whether he
individually could foresee them or not. But, when words are used
exactly, a deed is not done with intent to produce a consequence unless
that consequence is the aim of the deed. It may be obvious, and obvious
to the actor, that the consequence will follow, and he may be liable for
it even if he regrets it, but he does not do the act with intent to
produce it unless to aim to produce it is the proximate motive of the
specific act, although there may be some deeper motive behind. It seems
to me that this statute must be taken to use its words in a strict and
accurate sense." 250 U.S. at 626-627. In the Holmes-Pollock Letters this
is the main point discussed by the two correspondents regarding the
Abrams Case; the clear and present danger doctrine is not mentioned. 2
Holmes-Pollock Letters, 29, 31, 32, 42, 44-45, 48, 65.
[93] 251 U.S. 466 (1920).
[94] Ibid. 479. _See also_ to the same effect: Pierce _v._ United
States, 252 U.S. 239 (1920).
[95] 268 U.S. 652 (1925).
[96] Ibid. 668, 669.
[97] Ibid. 670.
[98] Ibid. 671. Justice Holmes presented a dissenting opinion for
himself and Justice Brandeis which contains a curious note of fatalism.
He said: "If what I think the correct test is applied, it is manifest
that there was no present danger of an attempt to overthrow the
government by force on the part of the admittedly small minority who
shared the defendant's views. It is said that this Manifesto was more
than a theory, that it was an incitement. Every idea is an incitement.
It offers itself for belief, and, if believed, it is acted on unless
some other belief outweighs it, or some failure of energy stifles the
movement at its birth. The only difference between the expression of an
opinion and an incitement in the narrower sense is the speaker's
enthusiasm for the result. Eloquence may set fire to reason. But
whatever may be thought of the redundant discourse before us, it had no
chance of starting a present conflagration. If, in the long run, the
beliefs expressed in proletarian dictatorship are destined to be
accepted by the dominant forces of the community, the only meaning of
free speech is that they should be given their chance and have their
way." Ibid. 673.
[99] 274 U.S. 357 (1927).
[100] Ibid. 373, 377. Apparently this means that the ultimate test of
the constitutionality of legislation restricting freedom of utterance is
whether there is still sufficient time to educate the utterers out of
their mistaken frame of mind, and the final say on this necessarily
recondite matter rests with the Supreme Court! Justice Brandeis also
asserts (274 U.S. at 376) that there is a distinction between "advocacy"
and "incitement," but fails to adduce any supporting authority.
[101] 301 U.S. 242 (1937).
[102] Ibid. 261-263.
[103] 310 U.S. 88 (1940).
[104] Ibid. 105.
[105] Cantwell _v._ Connecticut, 310 U.S. 296, 308 (1940).
[106] Stromberg _v._ California, 283 U.S. 359, 369 (1931).
[107] Fox _v._ Washington, 236 U.S. 273, 277 (1915).
[108] Gitlow _v._ New York, 268 U.S. 652 (1925).
[109] Terminiello _v._ Chicago, 337 U.S. 1 (1949).
[110] Ibid. 4.
[111] Ibid. 33. Dissenting opinions were written by Chief Justice
Vinson, Justice Frankfurter (with whom Justices Jackson and Burton
concurred) and Justice Jackson, (with whom Justice Burton agreed).
[112] 340 U.S. 315 (1951).
[113] Ibid. 319-320. Anent this finding, Justice Douglas, in his
dissent, declared that: "Public assemblies and public speech occupy an
important role in American life. One high function of the police is to
protect these lawful gatherings so that the speakers may exercise their
constitutional rights. When unpopular causes are sponsored from the
public platform, there will commonly be mutterings and unrest and
heckling from the crowd. * * * But those extravagances * * *, do not
justify penalizing the speaker by depriving him of the platform or by
punishing him for his conduct. * * * If * * * the police throw their
weight on the side of those who would break up the meetings, the police
become the new censors of speech. Police censorship has all the vices of
the censorship from city halls which we have repeatedy [sic] struck
down."--Ibid. 330-331.
[114] 333 U.S. 507 (1948).
[115] Ibid. 514-515.
[116] Musser _v._ Utah, 333 U.S. 95 (1948).
[117] Ibid. 101. This dissent probably marks the climax of the clear and
present danger doctrine.
"On March 20, 1949, members of the Vice Squad of the Philadelphia Police
Department, at the direction of Inspector Craig Ellis, head of the Vice
Squad, commenced a series of mass raids upon book stores and booksellers
in Philadelphia. Inspector Ellis gave his men a list of books that in
his opinion were obscene, and directed them to seize the books wherever
found. Fifty-four booksellers were raided, and nearly twelve hundred
copies of the books were confiscated.
"These raids were remarkable not only because of the scale on which they
were conducted, but in several other respects. First, they were directed
in major part against books written by authors in the forefront of
American literature and published by some of the leading publishers in
America. Second, the raids were conducted and the books were confiscated
without warrants of search or seizure or court order of any kind. Third,
the list of books to be seized was compiled by Inspector Ellis and a
patrolman in his office, without consultation with the District
Attorney's office or the obtaining of any legal opinion as to whether
the books were obscene under the Pennsylvania statute.
"For once the publishers took the offensive. Houghton Mifflin Company,
publisher of _Raintree County_, Alfred A. Knopf, Inc., publisher of
_Never Love a Stranger_, and The Vanguard Press, Inc., publisher of
books by James T. Farrell and Calder Willingham among those seized,
commenced actions in the Federal District Court in Philadelphia to
restrain further police seizures of these books and to recover damages
from the police officers for their unlawful acts. In these two actions
the authors Harold Robbins and James T. Farrell, as well as Charles
Praissman, a courageous bookseller whose stores had been raided, joined
the publishers as parties plaintiff. The District Attorney of
Philadelphia countered by commencing criminal proceedings against five
of the booksellers whose stores had been raided, and on June 30, 1948
the grand jury, upon presentation of the District Attorney, indicted the
booksellers on a charge of having violated the Pennsylvania statute
prohibiting the sale of obscene books.
"In the meantime the Federal court cases brought by the publishers has
come to trial before Judge Guy K. Bard, and at the conclusion of the
trials Judge Bard had enjoined further seizures of the plaintiff's
books, as well as police invasion of Praissman's stores or seizure of
his books without a warrant. At the time of this writing, the Federal
court cases have not been finally decided.
"On January 3, 1949 the criminal cases came on for trial before Judge
Curtis Bok of the Pennsylvania Court of Quarter Sessions. The defendants
pleaded not guilty and waived trial by jury. They stipulated that at the
times and places mentioned in the indictments they had had possession of
the books for the purpose of offering them for sale to the public. The
books were then placed in evidence, and the prosecution rested its case.
The defendants 'demurred to the evidence,' the effect of which was to
raise the issue of whether the court, in the light of the constitutional
guaranty of freedom of the press, could hold, beyond a reasonable doubt,
that the books before it were obscene within the meaning of the
Pennsylvania obscenity statute." Introductory note to a republication by
Alfred Knopf Inc. of Judge Bok's opinion in Commonwealth _v._ Gordon _et
al._, 66 D & C (Pa.) 101 (1949).
On March 18, 1949 Judge Bok sustained the demurrers and entered judgment
in favor of the defendants. The opinion which accompanies his judgment
pivots in part on the clear and present danger rule. It reads: "The only
clear and present danger to be prevented by section 524 that will
satisfy both the Constitution and the current customs of our era is the
imminence of the commission of criminal behavior resulting from the
reading of a book. Publication alone can have no such automatic effect."
This obviously overlooks the primary purpose of governmental
interference with the distribution of "obscene literature," namely to
protect immature minds from contamination. Dealing with this point Judge
Bok protests against putting "the entire reading public at the mercy of
the adolescent mind." Should, on the other hand, the adolescent mind be
put at the mercy of the uninhibited reading tastes of an elderly federal
judge?
[118] 310 U.S. 88 (1940).
[119] 310 U.S. 106 (1940).
[120] Thornhill _v._ Alabama, 310 U.S. 88, 102, 105 (1940).
[121] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287 (1941); _See also_
Hotel and Restaurant Employees' Alliance _v._ Board, 315 U.S. 437
(1942).
[122] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287, 293 (1941).
[123] American Federation of Labor _v._ Swing, 312 U.S. 321 (1941);
Bakery and Pastry Drivers _v._ Wohl, 315 U.S. 769 (1942); Cafeteria
Employees Union _v._ Gus Angelos, 320 U.S. 293 (1943).
[124] Teamsters Union _v._ Hanke, 339 U.S. 470, 474 (1950).
[125] Giboney _v._ Empire Storage Co., 336 U.S. 490 (1949).
[126] Building Service Union _v._ Gazzam, 339 U.S. 532 (1950).
[127] Hughes _v._ Superior Court, 339 U.S. 460 (1950).
[128] Carpenters Union _v._ Ritter's Cafe, 315 U.S. 722, 728 (1942).
[129] Giboney _v._ Empire Storage Co., 336 U.S. 490 (1949).
[130] Ibid. 501, 502, citing Fox _v._ Washington, 236 U.S. 273, 277,
which predates any suggestion of the clear and present danger formula.
_See_ above. [Transcriber's Note: Reference is to Section CONTRASTING
OPERATION OF THE COMMON LAW RULE, above.]
[131] Lincoln Union _v._ Northwestern Co., 335 U.S. 525 (1949); A.F. of
L. _v._ American Sash Co., ibid., 538.
[132] Auto Workers _v._ Wis. Board, 336 U.S. 245 (1949). In Teamsters
Union _v._ Hanke, 339 U.S. 470 (1950), injunctions by State courts
against picketing of a self-employer's place of business to compel him
to adopt a union shop were sustained.
[133] Thomas _v._ Collins, 323 U.S. 516 (1945).
[134] Ibid. 566.
[135] Patterson _v._ Colorado, 205 U.S. 454 (1907). _Cf._ Toledo
Newspaper Co. _v._ United States, 247 U.S. 402 (1918) in which the Court
affirmed a judgment imposing a fine for contempt of court on an editor
who had criticized the action of a federal judge in a pending case. The
majority held that such conviction did not violate the First Amendment.
Justices Holmes and Brandeis dissented on the ground that the
proceedings did not come within the applicable federal statute, but did
not discuss the constitutional issue. This decision was overruled in Nye
_v._ United States, 313 U.S. 33 (1941).
[136] 314 U.S. 252 (1941).
[137] Ibid. 271.
[138] Ibid. 283, 284.
[139] 328 U.S. 331 (1946).
[140] Ibid. 350.
[141] Ibid. 349.
[142] 331 U.S. 367 (1947).
[143] Ibid. 376.
[144] Davis _v._ Massachusetts, 107 U.S. 43 (1897).
[145] Ibid. 47.
[146] 307 U.S. 496, 515, 516 (1939).
[147] 334 U.S. 558 (1948).
[148] Kovacs _v._ Cooper, 336 U.S. 77 (1949).
[149] Public Utilities Commission _v._ Pollak, 343 U.S. 451 (1952). The
decision overruled the United States Court of Appeals for the District
of Columbia. Here Judge Edgerton, speaking for himself and two
associates, said: "Exploitation of this audience through assault on the
unavertible sense of hearing is a new phenomenon. It raises 'issues that
were not implied in the means of communication known or contemplated by
Franklin and Jefferson and Madison.' But the Bill of Rights, as
appellants say in their brief, can keep up with anything an advertising
man or an electronics engineer can think of. * * *
"If Transit obliged its passengers to read what it liked or get off the
car, invasion of their freedom would be obvious. Transit obliges them to
hear what it likes or get off the car. Freedom of attention, which
forced listening destroys, is a part of liberty essential to individuals
and to society. The Supreme Court has said that the constitutional
guarantee of liberty 'embraces not only the right of a person to be free
from physical restraint, but the right to be free in the enjoyment of
all his faculties * * *.' One who is subjected to forced listening is
not free in the enjoyment of all his faculties." He quoted with approval
Justice Reed's statement in Kovacs _v._ Cooper, "The right of free
speech is guaranteed every citizen that he may reach the minds of
willing listeners."--191 F. 2d 450, 456 (1951).
[150] Lovell _v._ Griffin, 303 U.S. 444 (1938); Schneider _v._ State,
308 U.S. 147 (1939); Largent _v._ Texas, 318 U.S. 418 (1943).
[151] Schneider _v._ State, 308 U.S. 147 (1930); Jamison _v._ Texas, 318
U.S. 413 (1943).
[152] Marsh _v._ Alabama, 326 U.S. 501 (1946).
[153] Tucker _v._ Texas, 326 U.S. 517 (1946).
[154] Valentine _v._ Chrestensen, 316 U.S. 52 (1942).
[155] Martin _v._ Struthers, 319 U.S. 141 (1943).
[156] Breard _v._ Alexandria, 341 U.S. 622 (1951).
[157] 221 U.S. 418, 439 (1911). _See_ below. [Transcriber's Note:
Reference is to Section FEDERAL RESTRAINTS ON FREEDOM OF SPEECH AND
PRESS, above.]
[158] Near _v._ Minnesota, 283 U.S. 697 (1931).
[159] Drivers Union _v._ Meadowmoor Co., 312 U.S. 287 (1941); Carpenters
Union _v._ Ritter's Cafe, 315 U.S. 722 (1942).
[160] 315 U.S. 568 (1942).
[161] 319 U.S. 624 (1943).
[162] 315 U.S. 568, 571, 572 (1942).
[163] 319 U.S. 624, 633 (1943).
[164] Lovell _v._ Griffin, 303 U.S. 444, 451 (1938).
[165] Chaplinsky _v._ New Hampshire, 315 U.S. 568 (1942); Cox _v._ New
Hampshire, 312 U.S. 569 (1941).
[166] Lovell _v._ Griffin, 303 U.S. 444 (1938); Hague _v._ C.I.O., 307
U.S. 496, 516 (1939); Schneider _v._ State, 308 U.S. 147 (1939);
Cantwell _v._ Connecticut, 310 U.S. 296 (1940); Largent _v._ Texas, 318
U.S. 418 (1943); Thomas _v._ Collins, 323 U.S. 516, 538 (1945); Saia
_v._ New York, 334 U.S. 558 (1948).
[167] Radio Comm'n _v._ Nelson Bros. Co., 289 U.S. 266 (1933);
Communications Comm'n. _v._ N.B.C., 319 U.S. 239 (1943).
[168] Mutual Film Corp. _v._ Ohio Indus'l Comm., 236 U.S. 230, 244
(1915).
[169] 334 U.S. 131 (1948).
[170] Ibid. 166.
[171] Joseph Burstyn, Inc. _v._ Wilson, 343 U.S. 495 (1952).
[172] Ibid. 502. Justice Frankfurter, concurring for himself and
Justices Jackson and Burton, elaborates upon the vagueness of
connotation of the New York Court's use of the word "sacrilegious."
_See_ Appendix to his opinion, Ibid. 533-40. Justice Reed, in his
concurring opinion, suggests that the Court will now have the duty of
examining "the facts of the refusal of a license in each case to
determine whether the principles of the First Amendment have been
honored." Ibid. 506-507.
[173] 314 U.S. 252 (1941).
[174] Ibid. 263.
[175] 323 U.S. 516 (1945).
[176] Ibid. 529-530.
[177] Palko _v._ Connecticut, 302 U.S. 319, 327 (1937).
[178] United States _v._ Carolene Products Co., 304 U.S. 144, 152, fn. 4
(1938).
[179] 328 U.S. 331 (1946).
[180] Ibid. 353.
[181] Kovacs _v._ Cooper, 336 U.S. 77, 88 (1949).
[182] Ibid. 90.
[183] Brinegar _v._ United States, 338 U.S. 160, 180 (1949).
[184] Terminiello _v._ Chicago, 337 U.S. 1, 4 (1949).
[185] Kunz _v._ New York, 340 U.S. 290, 302.
[186] Ibid. 309. In a footnote Justice Jackson points to the peculiarly
protected position of the Court today, thanks to ch. 479, Public Law
250, 81st Congress, approved August 18, 1949. This makes it unlawful to
"make any harangue or oration, or utter loud, threatening, or abusive
language in the Supreme Court Building or grounds." Sec. 5. It also
forbids display of any "flag, banner, or device designed or adapted to
bring into public notice any party, organization, or movement." Sec. 6.
Moreover, it authorizes the marshal to "prescribe such regulations
approved by the Chief Justice of the United States, as may be deemed
necessary for the adequate protection of the Supreme Court Building and
grounds and of persons and property therein, and for the maintenance
of suitable grounds." Sec. 7. Violation of these provisions or
regulations is an offense punishable by fine and imprisonment.
[187] Grosjean _v._ American Press Co., 297 U.S. 233, 246 (1936).
[188] Ibid. 250.
[189] Ibid.
[190] Murdock _v._ Pennsylvania, 319 U.S. 105 (1943); Jones _v._
Opelika, 319 U.S. 103 (1943); Follett _v._ McCormick, 321 U.S. 573
(1944).
[191] Associated Press _v._ United States, 326 U.S. 1 (1945). A
newspaper publisher who enjoyed a substantial monopoly of mass
distribution of news was enjoined from refusing advertising from persons
advertising over a competing radio station. The Court sustained the
injunction against the objection that it violated freedom of the press,
holding that appellant was guilty of attempting to monopolize interstate
commerce. Lorain Journal _v._ United States, 342 U.S. 143 (1951).
[192] Associated Press _v._ Labor Board, 301 U.S. 103, 133 (1937).
[193] Okla. Press Pub. Co. _v._ Walling, 327 U.S. 186 (1946).
[194] 221 U.S. 418 (1911).
[195] Ibid. 430.
[196] 314 U.S. 469 (1941).
[197] Ibid: 477.
[198] Ibid. 478.
[199] United States _v._ C.I.O., 335 U.S. 106 (1948).
[200] 106 U.S. 371 (1882).
[201] 19 Stat. 143 Sec. 6 (1876).
[202] 53 Stat. 1147 (1939).
[203] United Public Workers _v._ Mitchell, 330 U.S. 75 (1947).
[204] Oklahoma _v._ United States Civil Serv. Comm., 330 U.S. 127
(1947).
[205] Schenck _v._ United States, 249 U.S. 47 (1919); Frohwerk _v._
United States, 249 U.S. 204 (1919); Debs _v._ United States, 249 U.S.
211 (1919); Abrams _v._ United States, 250 U.S. 616 (1919); Schaefer
_v._ United States, 251 U.S. 466 (1919); Pierce _v._ United States, 252
U.S. 239 (1920); _cf._ Gilbert _v._ Minnesota 254 U.S. 325 (1920);
Hartzel _v._. United States, 322 U.S. 680 (1944).
[206] 341 U.S. 494 (1951).
[207] 61 Stat. 136, 146 (1947); "Taft-Hartley Act."
[208] 339 U.S. 382 (1950).