Absolutism (Freedom of Speech and Press)

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ABSOLUTISM (Freedom of Speech and Press)

In the 1950s and 1960s, some Justices of the Supreme Court and some commentators on the Court's work debated an abstract issue of constitutional theory pressed on it by Justice hugo l. black :Isthe first amendment an "absolute," totally forbidding government restrictions on speech and the press that fall within the Amendment's scope, or is the freedom of speech properly subject to balancing tests that weigh restrictions on speech against governmental interests asserted to justify them? With Black's retirement in 1971, the whole airy question simply collapsed.

The argument that the First Amendment "absolutely" guaranteed speech and press freedoms was first raised in the debate over the Sedition Act (1798) but did not become the focus of debate in Supreme Court opinions for another century and a half. The occasion was presented when the Court confronted a series of cases involving governmental restrictions on subversive activities. For alexander meiklejohn, First Amendment absolutism was built into the structure of a self-governing democracy. For Justice Black, it was grounded in the constitutional text.

Black argued that "the Constitution guarantees absolute freedom of speech"—he used the modern locution, including the press when he said "speech"—and, characteristically, he drew support from the First Amendment's words: "Congress shall make no law … abridging the freedom of speech, or of the press." He viewed all obscenity and libel laws as unconstitutional; he argued, often supported by Justice william o. douglas, that government could not constitutionally punish discussions of public affairs, even if they incited to illegal action. But Black never claimed that the First Amendment protected all communications, irrespective of context. He distinguished between speech, which was absolutely protected, and conduct, which was subject to reasonable regulation. So it was that the First Amendment absolutist, toward the end of his life, often voted to send marchers and other demonstrators to jail for expressing themselves in places where he said they had no right to be.

First Amendment absolutism fails more fundamentally, on its own terms. A witness who lies under oath surely has no constitutional immunity from prosecution, and yet her perjury is pure speech. Most observers, conceding the force of similar examples, have concluded that even Justice Black, a sophisticated analyst, must have viewed his absolutism as a debating point, not a rigid rule for decision. In the Cold War atmosphere of the 1950s, a debating point was sorely needed; there was truth to Black's charge that the Court was "balancing away the First Amendment." As Judge learned hand had argued many years previously, in times of stress judges need "a qualitative formula, hard, conventional, difficult to evade," if they are to protect unpopular political expression against hostile majorities. A "definitional" technique has its libertarian advantages. Yet it is also possible to "define away" the First Amendment, as the Court has demonstrated in its dealings with obscenity, fighting words, and some forms of libel and commercial speech.

Even when the Court is defining a category of speech out of the First Amendment's scope, it states its reasons. Thus, just as "balancers" must define what it is that they are balancing, "definers" must weigh interests in order to define the boundaries of protected speech. Since Justice Black's departure from the Court, First Amendment inquiry has blended definitional and interest-balancing techniques, focusing—as virtually all constitutional inquiry must ultimately focus—on the justifications asserted for governmental restrictions. Justice Black's enduring legacy to this process is not the theory of First Amendment absolutes, but his lively concern for the values of an open society.

Kenneth L. Karst
(1986)