In 1964, the Supreme Court decided New York Times Co. v. Sullivan, an important and novel decision of great consequence in the law of the First Amendment.
Among other things, the Court declared the Sedition Act of 1798 unconstitutional, better than a century-and-a-half after its expiration. Justice delayed, but not denied.
In a more contemporary frame of mind, the Court reversed a judgment in a libel action granted by the Alabama courts to the Police Commissioner of Montgomery against the New York Times. The Times had printed some inaccurate statements about the Commissioner in a fund-raising advertisement for Dr. Martin Luther King, who in turn had run afoul of the Commissioner in the course of some demonstrations. The Court held that the First Amendment prevents a public official from recovering damages for a defamatory falsehood relating to his official conduct, unless he proves that the false statement about him was made with actual knowledge that it was false, or with reckless disregard of whether it was false or not; in other words, with malice. Such a rule, historically quite a new departure, was necessary, the Court said, in order to carry out “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” and should be allowed to include even “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
To require that debate, however uninhibited, robust, wide-open, vehement, caustic, and unpleasantly sharp, be truthful in its factual assertions would dampen the vigor, and limit the variety, of public debate—certainly limit the variety. It would deprive First Amendment rights, said Justice Brennan for the Court, of necessary breathing space. Knowing that they might have to prove their assertions to a jury, would-be critics of official conduct might be deterred from making assertions they fully believed to be true. For we all know that few statements, however true, can be proved to a mathematical certainty; we know that juries exercise judgment, which is fallible and may be prejudiced, and that, in any event, trials are fearfully expensive. As a litigant, Judge Learned Hand once said, “I should dread a law-suit beyond almost anything else short of sickness and death.”
The lesson of New York Times Co. v. Sullivan—that the First Amendment guarantees the right to publish falsehood—was well-learned by a Republican Congressman who voted in the summer of 1971, quite rightly in my judgment, against a resolution that would have cited President Stanton of CBS for contempt of Congress for refusing to make available to Congress editorial matter used in connection with a broadcast called, “The Selling of the Pentagon.” “The First Amendment,” said the Congressman, perhaps unfairly but with acute appreciation of the constitutional position, “guarantees CBS the right to lie, and they exercise it frequently.”
The date of the decision in New York Times Co. v. Sullivan is as interesting as its substance. To borrow the Court’s phrase in Sullivan, only of late has the First Amendment played, as in Sullivan, an “uninhibited, robust, and wide-open” role in our law. And the total career, robust or otherwise, of the First Amendment as part of the law of the Constitution encompasses little more than half a century. Of course the First Amendment has been in the Constitution and has had pride of place in the Bill of Rights since 1791, so what we may think of as its admonitory career is quite long. But its legal career in court decisions is a matter, essentially, of the past half century.
In England and in the colonies in the 18th century, and in the United States in the administration of President John Adams, there was a great deal of turmoil and a great deal of legal maneuvering about freedom of speech, and more particularly of the press. This constitutes the background and the earliest environment of the First Amendment. But in England, and the more so in the United States, an easy and uncontested freedom of speech and of the press prevailed through the 19th century. During this period, the First Amendment was legally an unquestioned assumption.
I have no wish to romanticize the 19th century. Locally, especially around the critical contradiction of slavery, there were infringements of freedom of speech. Abolitionist speakers were sometimes dealt with harshly by law in the South and in parts of Northern and Border states. And mobs and other private forces, abetted from time to time in informal fashion by public force, imposed their own episodic constraints, sometimes violently. So did one or another military commander in the Civil War and Reconstruction periods. But there were no systemic, and certainly no nationwide, legal constraints.
Government was, of course, altogether during this century very far from the ubiquitous presence that it is now. The late Zechariah Chafee, Jr., the first great scholar of the First Amendment, tells us that “the [then] prevailing doctrine of laissez faire was extended to the field of discussion. The outstanding representative of the liberty of the time was John Stuart Mill.” It seemed “odd” to Chafee “to link together the legal restrictions on business and wealth enacted by collectivists at the opening of the 20th century and the Sedition laws enacted against collectivists” just about contemporaneously, after the long century of consensus and freedom. Yet Chafee recognized the common impulse behind the social and economic legislation and the restrictions on freedom of speech, both of which the 20th century ushered in. The impulse proceeded from social unrest. The movement for industrial justice disturbed the consensus, and gave rise to government action regulating industry on the one hand, and constricting freedom of speech and of the press on the other. Then followed judicial decisions testing the reach of the First Amendment.
Chafee thought it unfortunate that during the 19th century, “freedom of speech was a cherished tradition, but remained without specific [legal] content.” In this we may consider that Chafee was mistaken. For law can never make us as secure as we are when we do not need it. Those freedoms which are neither challenged nor defined are the most secure. In this sense, for example, it is true that the American press was freer before it won its battle with the government over the Pentagon Papers in 1971 than after its victory. Before June 15, 1971, through the troubles of 1798, through one civil and two world wars, and other wars, there had never been an effort by the federal government to censor a newspaper by attempting to impose a restraint prior to publication, directly or in litigation. That spell was broken, and in a sense freedom was thus diminished.
But freedom was also extended in that the conditions in which government will not be allowed to restrain publication are now clearer and perhaps more stringent than they have been. We are, or at least we feel, freer when we feel no need to extend our freedom. The conflict and contention by which we extend freedom seem to mark, or at least to threaten, a contraction; and in truth they do, for they endanger an assumed freedom, which appeared limitless because its limits were untried. Appearance and reality are nearly one. We extend the legal reality of freedom at some cost in its limitless appearance. And the cost is real.
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Chafee held that the First Amendment “protects two kinds of interest in speech. There is an individual interest, the need of many men to express their opinions on matters vital to them if life is to be worth living. . . .” Secondly, Chafee wrote, there is “a social interest in the attainment of truth, so that the country may not only adopt the wisest course of action but carry it out in the wisest way.”
Now, the interest in truth of which Chafee spoke is not inconsistent with the First Amendment’s protection of demonstrable falsehood, for as I have indicated, men may be deterred from speaking what they believe to be true because they may fear that it will be found to be false, or that the proof of its truth will be too expensive. Moreover, the individual interest that Chafee mentioned has its truth-seeking aspect. Yet the First Amendment does not operate solely or even chiefly to foster the quest for truth, unless we take the view that truth is entirely a product of the marketplace, and is definable as the perceptions of the majority of men, and not otherwise. The social interest that the First Amendment vindicates is rather, as Alexander Meiklejohn emphasized, the interest in the successful operation of the political process, so that the country may better be able to adopt the course of action that conforms to the wishes of the greatest number, whether or not it is wise or is founded in truth.
Discussion, the exchange of views, the ventilation of desires and demands—these are, of course, crucial to our politics. And so, for much the same reasons, is the effectiveness of the decisions reached by the political process, that is to say, the effectiveness of law embodying the wishes of the greatest number, or at any rate, of their chosen representatives. It would follow that the First Amendment should protect and indeed encourage speech so long as it serves to make the political process work—so long, that is, as it seeks to achieve objectives through the political process, by persuading a majority of voters; but not when it amounts to an effort to supplant, disrupt, or coerce the process, as by overthrowing the government, by rioting, or by other forms of violence; and not also when it constitutes a breach of an otherwise valid law, a violation of majority decisions embodied in law.
There would be considerably less of a problem with the First Amendment if we could distinguish with assurance between speech and conduct, as the late Justice Black and Justice Douglas have sometimes tried to persuade us that we can. Only conduct, their argument has run, can overthrow the government, be violent, hurt someone or something. Speech cannot. That, however, is unfortunately not so.
Very little conduct that involves more than one person is possible without speech. Speech leads to it, merges into it, is necessary to it. That is the point of Holmes’s famous metaphor: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic.” It was Holmes also, in the course of a truly fervent defense of free speech, in the dissent in the Gitlow case, who said: “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.”
There are, then, problems. I have mentioned two. One is the problem of speech which is not discussion forming part of the political process, but which is aimed at dispensing with it, or at a disruption of it, a coercion of it by violence. Second, there is the problem of speech which is aimed at, or otherwise involves, the violation of a valid law or procedure; speech that has no general purpose to supplant the political process, but that refuses to accept its operation or its outcome in a given instance. Here I have in mind counseling, or inciting to, disobedience of law—perfectly peaceable disobedience, but disobedience. I have in mind also speech or assembly that involves a breach of laws or procedures which safeguard the public peace and tranquility, or some other public interest; laws or procedures whose validity would not be questioned except as they are violated in the course of engaging in speech or assembly.
That aspect of the first problem—the problem with efforts to supplant or coerce the political process—which is embraced in the historic concept of seditious speech is dealt with, and perhaps solved as well as may be, by the clear-and-present danger test that Holmes formulated better than half a century ago. The solution is in terms of a judgment, as Holmes often liked to say, of proximity and degree: a pragmatic judgment, drawing a distinction between speech that carries a high risk of disruption, coercion, or violence, and speech that carries no, or less, risk. This judgment is generalized loosely into the clear-and-present-danger formula, under which speech is protected unless it constitutes, in the circumstances, an intentional incitement to imminent forbidden action.
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Since it is perfectly true, as Holmes said, that every idea is an incitement, society would enjoy very little freedom of heated, passionate, or emotional discourse, or altogether of radical discussion, unless this distinction were drawn and enforced. Shortly before Holmes first formulated the clear-and-present-danger test, Judge Learned Hand wrote: “Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them into execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation . . . with direct incitement to violent resistance is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.” Recently, in Watts v. United States, the Supreme Court dealt with an alleged violation of a statute making it a crime to threaten the life of the President. Watts had said at a public rally that he had been classified 1-A, and: “I am not going. If they ever make me carry a rifle, the first man I want to get is LBJ.” The Court held that this was “political hyperbole” rather than intentional incitement, and could not form the basis of a criminal prosecution. Political speech, said the Court, is often “vituperative, abusive, inexact.” Watts’s pronouncement was no more than a crude and offensive statement of opposition to President Johnson.
The clear-and-present-danger test as originally formulated by Holmes also purported to solve the second of the problems I have mentioned—the problem of speech which does not incite to violence or any other coercion of the political process, but merely to the violation of an otherwise valid law or procedure. Our political process, however, is too dependent on registering intensity of feeling as well as majority wish, the former of which it cannot do through the ballot box; it has too many stages of decision-making before laws are ultimately held valid, and too many stages of law-formation which often render law provisional only; and on the other hand it results by now in a very pervasive government and makes numerous laws and regulations of vastly differing orders of importance—the process is, in sum, too complex, diverse, and resourceful to subsume an unvarying duty to obey all laws. Simple application of the clear-and-present-danger test to forbid all speech which constitutes an intentional incitement to break a law, or all speech which by itself or through its by-products, as in the form of assembly, or of marching, or of handing out leaflets, involves a breach of rules or procedures safeguarding an otherwise valid public interest, would be an anomalous and unrealistic result. It would rest on a snapshot of the political process that showed it as consisting of discussion and voting and nothing else. That is not the whole process, not nearly. It would not work if it were, it would not generate the necessary consent to government, and would not be stable. We cannot, therefore, as a society, be held to put that kind of store by the duty to obey.
Consequently, quite early, in Whitney v. California, Brandeis, with Holmes concurring, drew some further distinctions, and made occasion for additional judgments of proximity and degree. The fact that speech is likely to result in some violation of law was not enough, he said, to justify its suppression. “There must be the probability of serious injury to the state.” And Brandeis gave a very interesting example, calling to mind an ancient and persistent form of civil disobedience: speech that creates an imminent danger of organized trespass on unenclosed, privately-owned land. It would be unconstitutional, he suggested, to prohibit such speech, despite the imminent danger it presented, because the harm to society which the prohibition would seek to avert would be “relatively trivial.”
Subsequent cases have required government to show not merely a rational, otherwise valid, interest in support of a law or procedure that is endangered or actually violated by speech or by activity attending speech, but a “compelling interest.” As the Court said in 1939, in Schneider v. State, when speech or assembly breaks or threatens to break a law, “the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of” the law in question. Hence, the ultimate formulation of the clear-and-present-danger test, by Judge Learned Hand, is that the 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.”
The nature and gravity of the evil, its gravity as well as its proximity, thus form part of the judicial judgment. One may ask by what warrant courts decide that some valid laws passed by a legislature are less important than other ones, and may be endangered or disobeyed. Someone must, however, unless each and every legitimate but utterly trivial public interest is to prevail over the interest in what Meiklejohn called those activities of communication by which we govern. Hence courts do so decide. And we have thus built into the system a kind of domesticated form of civil disobedience.
It is this aspect of the First Amendment that the Pentagon Papers-New York Times case of 1971 illustrated and developed. The case can be viewed in another light, as I shall show. And it had other features. It was a prior restraint case. Prior restraints are traditionally disfavored—and in circumstances such as those of the Pentagon Papers publication, with very good reason—even where an attempt might be allowed to regulate the same sort of speech through the in terrorem effect of a subsequent sanction. Again, the case involved a question of statutory construction and a problem of the separation of powers. Passing these features, the essence of the government’s complaint was that publication of the Pentagon Papers violated a public interest in the confidentiality of government documents, an interest which the executive order establishing the classification system, and also, the government contended, the Espionage Act were intended to safeguard. The Espionage Act raised the question of statutory construction to which I have referred, and the attempt to apply the executive order concerning classification of documents, not internally within the executive branch of government, but externally to private persons and entities gave rise to the problem of separation of powers. Assuming, however, that the government had prevailed on either or both of these points—assuming, that is, acceptance of the government’s argument that the public interest in confidentiality of government documents was embodied in valid and applicable law, either in the executive order or in the Espionage Act or both—there remained the issue whether the given injury to this public interest was in the circumstances grave enough to justify a restriction on speech, or too trivial to justify it.
Justice Harlan took the position that the weighing of the gravity of the injury was in this instance not for the judges to undertake, because when the injury is to the nation’s foreign relations, as it was plausibly alleged to be, judges should, he thought, simply accept the President’s assessment of its gravity. The government did not really contend for this much, and no other Justice seemed prepared to concede it. Rather the government tried to persuade the judges themselves that the breach of confidentiality constituted, in the circumstances, a grave and not merely probable, but immediate injury. The injury was prolongation of the Vietnam war by providing the enemy with helpful information, and embarrassment to the United States in the conduct of diplomatic affairs.
Now, as to the war, there was a question of immediacy, and indeed of causal connection between publication and the feared injury. The discount for improbability was heavy. There was actually nothing more than a tendency, if that, and the bad-tendency test in seditious speech cases is precisely what the clear-and-present-danger doctrine displaced, as its very formulation indicates. It required a high probability instead. As to the claim of embarrassment in the conduct of diplomatic affairs, however, an immediate causal connection was reasonably clear. Here the gravity of the injury was squarely in issue. And it was held insufficient. The predilection for in-system civil disobedience prevailed.
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The clear-and-present-danger doctrine, then, as it has evolved beyond its original formulation, makes room for what used to be called seditious speech, and for a measure of necessary in-system civil disobedience. It gives fair satisfaction, even though it places a bit more reliance in the discretion and prudence of judges than either voluptuaries of liberty or judicial conservatives find altogether comfortable. The underlying broad principle is that the First Amendment protects the political process, and a right of self-expression consistent with its requirements. But other, fundamental difficulties remain, which the clear-and-present-danger test rather tends to sweep under the rug. Obviously the political process is not what we pursue everywhere, for purposes of all decision-making, or always. There are times when we do not, and places where we do not, and times when the need for self-expression is also not a dominant interest. Equally obviously, not all the results that the political process might attain are acceptable.
Thus a criminal trial to a jury does not operate on the rules of the political process or as a forum for self-expression, and if a witness, therefore, should wish to recite some hearsay evidence to the jury, we stop him. We forbid him to speak. We might also, and we should, as Justice Black intimated, although in dissent, in Cox v. Louisiana, stop a speaker from assailing a trial by haranguing a crowd on the courthouse lawn while the trial is proceeding. “Government under law as ordained by our Constitution is too precious, too sacred,” said Justice Black, “to be jeopardized by subjecting the courts to intimidatory practices that have been fatal to individual liberty and minority rights wherever such practices have been allowed to poison the streams of justice.” What is meant by intimidatory practices is public opinion impinging too proximately and too directly on the trial. Only a year later, in 1966, in Adderley v. Florida, Justice Black, now in the majority, indicated that the grounds of a jail were also no place for free expression of views. The democratic political process is not the method by which we conduct trials, it is not what prevails within a jail or around it, and where it does not prevail, the First Amendment should not protect speech that in other circumstances would be protected. Faculties that just a few years ago felt embarrassed to exclude students from their deliberations might have remembered that. A university is also not governed by the democratic political process. And of course we recognize times when that process is suspended even in places where ordinarily it does rule. Hence curfews, hence martial law.
In approaching the other and greater difficulty—unacceptable results that the political process, with free speech as a principal component, might reach, or unacceptable acts that speech might counsel its hearers to engage in—one wants to be extremely careful not to be understood as following the teaching of Herbert Marcuse. But that does not mean that the problem shouldn’t be stated and faced. Take, for example, the advocacy—not the intentional incitement, which the clear-and-present-danger test does allow us to reach—but the advocacy of genocide. Or, to recall what is more familiar, suppose, more minimally, a speech as in Beauharnais v. Illinois, decided in 1952, which urged the segregation of Negroes on the ground that they are all given to rape, robbery, knives, guns, and marijuana. Or the speech in Brandenburg v. Ohio, decided in 1969: “I believe the nigger should be returned to Africa, the Jew returned to Israel.” Or the speech in a case of the early 1950’s, Kunz v. New York: “All the garbage that didn’t believe in Christ should have been burnt in the incinerators. It’s a shame they all weren’t.” Or Jerry Rubin urging the young to go home and kill their parents, or other talk looking with favor on murder, rape, fire, and destruction.
Writing in Kunz v. New York, not long after his experience as prosecutor at the Nuremberg trials, the late Justice Robert H. Jackson said: “Essential freedoms are today threatened from without and within. It may become difficult to preserve here what a large part of the world has lost—the right to speak, even temperately, on matters vital to spirit and body. In such a setting, to blanket hateful and hate-stirring attacks on races and faiths under the protections for freedom of speech may be a noble innovation. On the other hand, it may be a quixotic tilt at windmills which belittles great principles of liberty. Only time can tell. But I incline to the latter view. . . .”
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Passing for the moment the question whether there are greater dangers in trying to define and control the sort of speech I have been reciting than in risking that it will achieve the results it advocates, one may allow such speech on one of two premises: either the cynical premise that words don’t matter, that they make nothing happen and are too trivial to bother with; or else on the premise taken by Justice Brandeis in Whitney v. California that “discussion affords ordinarily adequate protection against the dissemination of noxious doctrine.”
As to the first premise, it is inconsistent with the idea of a First Amendment; if speech doesn’t matter, we might as well suppress it, because it is sometimes a nuisance. As to the second, we have lived through too much to believe it. To be sure, Justice Brandeis adhered to the clear-and-present-danger test, and conceded, therefore, that in circumstances of emergent danger we can stop speech. But we know, as Justice Brandeis may have allowed himself to forget, that speech can attain unacceptable ends even if it does not have the qualities of incitement, and even if it comes from people who lack the intent to achieve those ends.
Disastrously, unacceptably noxious doctrine can prevail, and can be made to prevail by the most innocent sort of advocacy. Holmes recognized as much in the passage in the Gitlow dissent in which he said that every idea is an incitement. He went on: “Eloquence may set fire to reason.” In the Gitlow case itself he saw neither incitement nor eloquence, and no chance of a present conflagration, no clear and present danger. Yet he did admit that all ideas were an incitement and that they carried the seed of future dangers as well as benefits. His answer was this: “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 [—the only—] is that they should be given their chance and have their way.”
If in the long run the belief, let us say, in genocide is destined to be accepted by the dominant forces of the community, the only meaning of free speech is that it should be given its chance and have its way. Do we believe that? Do we accept it?
Even speech which advocates no idea can have its consequences. It may inflict injury by its very utterance, as the Court said a generation ago, in the Chaplinsky case, of lewd or profane or fighting words. More, and equally important, it may create a climate, an environment in which conduct and actions that were not possible before become possible. It is from this point of view that the decision in the Watts case, in which the Court passed off as political hyperbole an expressed intention to shoot the President, is perhaps dubious. We have been listening for years now—the level of it in the universities is happily on the decline—to countless apocalyptic pronouncements and to filthy and violent rhetoric, and have dealt with them as speech, as statements of a position, of one side of an issue, to which we may respond by disagreeing, while necessarily accepting by implication the legitimacy of the statement, the right of the speaker to make it.
To listen to something on the assumption of the speaker’s right to say it is to legitimate it. There is a story—I cannot vouch for its accuracy, but I found it plausible—of a crowd gathered in front of the ROTC building at a university some years ago. At this university, as elsewhere in this time, some members of the faculty and administration had undertaken to discharge the function of cardinal legate to the barbarians, going without the walls, every so often, to negotiate the sack of the city. On this occasion, with the best of intentions, members of the faculty joined the crowd and participated in discussing the question whether or not to set fire to the building. The faculty, I gather, took the negative, and I assume that none of the students arguing the affirmative could have been deemed guilty of inciting the crowd. The matter was ultimately voted upon, and the affirmative lost—narrowly. But the negative taken by the faculty was only one side of a debate which the faculty rendered legitimate by engaging in it. Where nothing is unspeakable, nothing is undoable.
This is also the problem with obscenity. The question about obscenity is not whether books get girls pregnant, or sexy or violent movies turn men to crime. To view it in this way is to try to shoehorn the obscenity problem into the clear-and-present-danger analysis, and the fit is a bad one. Books, let us assume, do not get girls pregnant; at any rate, there are plenty of other efficient causes of pregnancy, as of crime. We may assume further that it is right to protect privacy, and that we have no business, therefore, punishing anyone for amusing himself obscenely in his home. But the question is, should there be a right to obtain obscene books and pictures in the market, or to foregather in public places—discreet, but accessible to all—with others who share a taste for the obscene? To grant this right is to affect the world about the rest of us, and to impinge on other privacies and other interests, as those concerned with the theater in New York have found, apparently to their surprise. Perhaps each of us can, if he wishes, effectively avert the eye and stop the ear. Still, what is commonly read and seen and heard and done intrudes upon us all, wanted or not, for it constitutes our environment.
The problem is no different from that raised by the physical environment, or by indecent exposure, by boisterous drunkenness, rampant prostitution, or public love-making. Yet the same Supreme Court which during the past decade has decreed virtually unlimited permissiveness with regard to obscenity has not construed the Constitution so as to forbid the placing of legal restraints on architectural designs, for example, or on indecencies of public behavior. Nor is the Court very likely to tell us that fostering heterosexual marriage while not countenancing homosexual unions, which is what the legal order does, of course, is unconstitutional. The assigned reason is that the First Amendment throws special safeguards around speech and other forms of communication, which are relevant to obscenity, but does not protect conduct. But the point is absurd. There is no bright line between communication and conduct. The effect, in the segment of both that we are here considering, is surely the same. What is a live sex show, communication or conduct?
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I state these problems without having a general solution to offer. They are uninhibited, robust, and intractable, although so far as obscenity, at least, is concerned, the Supreme Court could well have permitted some inhibitions of the robuster forms of it without needing to confront the ultimately intractable dilemma I shall pose presently. The argument for resolving these problems by extending protection to speech except as the clear-and-present-danger formula would authorize very limited suppression is stated by Holmes in the dissent in Abrams v. New York: “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” To allow opposition by speech, Holmes continues, indicates either that you think the speech does not matter, or that you doubt your power or your premises. He goes on: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” This is the point at which one asks whether the best test of the idea of proletarian dictatorship, or segregation, or genocide is really the marketplace, whether our experience has not taught us that even such ideas can get themselves accepted there, and that a marketplace without rules of civil discourse is no marketplace of ideas, but a bullring.
The theory of the truth of the marketplace, Holmes concluded, expressing one may believe more his own view than that of the Philadelphia Convention, “is the theory of our Constitution. It is an experiment, as all life is an experiment.” But the theory of the truth of the marketplace, determined ultimately by a count of noses—this total relativism cannot be the theory of our Constitution, or there would be no Bill of Rights in it, and certainly no Supreme Court to enforce it. It amused Holmes to pretend that if his fellow citizens wanted to go to hell in a basket, he would help them. It was his job, he said. Sometimes he did, to be sure, and sometimes it was his job as a judge. But not his sole job, and not always. And Holmes knew that, too. He had what he called his “can’t helps,” and he knew that the framers of the Constitution had had theirs, and somewhere in the combination of his “can’t helps”—of the framers’, of his fellow judges’, and of those of other leaders of opinion—were to be found the values of the society. If his fellow citizens wanted to consign these values to hell, perhaps they could do so, but it was not Holmes’s job to help them.
“I do not know what is true,” said Holmes. “I do not know the meaning of the universe.” His biographer, the late Mark DeWolfe Howe, wondered whether our stomachs are “strong enough to accept the bitter pill which Holmes tendered us.” They had better be, no doubt. We had better recognize how much a random confusion is human activity, and that there is no final validity to be claimed for our truths. If we allow ourselves to be engulfed in moral certitudes we will march to self-destruction from one Vietnam and one domestic revolution—sometimes Marcusean and often not—to another. But we do need, individually and as a society, some values, some belief in the foundations of our conduct, in order to make life bearable. If they, too, are lies, they are, as Holmes’s great contemporary, Joseph Conrad, thought them, true lies; if illusions, then indispensable ones. To abandon them is to commit moral suicide.
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Yet whom are we to trust as the custodians and enforcers of those few beliefs which constitute the foundations of our conduct? Passing majorities of the moment? That is the marketplace, which the First Amendment may enjoin us to guard, but not to trust, certainly not to trust to govern access to itself. Whom then? Electorally irresponsible courts? It is one thing to rely on them to keep the marketplace open, another to permit them to close it, even though we do trust our courts to guard some values against majoritarian subversion. We have no answer to these questions, and that is the real reason why we prefer, so often, to err on the side of permissiveness. But we should know also that we err—on the right side, perhaps, but we err.
Actually, ambiguity and ambivalence, not the theory of the truth of the marketplace, as Holmes would have had us think, is, if not the theory, at any rate the condition of the First Amendment in the law of our Constitution. Nothing is more characteristic of the law of the First Amendment—not the rhetoric, but the actual law of it—than the Supreme Court’s resourceful efforts to cushion rather than resolve clashes between the First Amendment and interests conflicting with it. The Court’s chief concern has been with process, with procedural compromises (using the term in a large sense), and with accommodations that rely on the separation and diffusion of power. A great deal of freedom of speech can flourish in a democratic society which naturally shares, or accepts from its judges or other pastors, a minimal definition of the good, the beautiful, the true, and the properly civil. A great deal of freedom of speech can flourish as well, for a time, at any rate, in a society which accepts the proposition of bullring, or marketplace, truth. We are neither society. We have tended to resemble the latter, of late, and we have more freedom than the former might enjoy, and than we enjoyed in the 19th century, but we are actually more nearly the former. Freedom of speech, with us, is a compromise, an accommodation. There is nothing else it could be.
The devices of compromise and accommodation that are perhaps in commonest use go by the names of vagueness and overbreadth. The Court will not accept infringements on free speech by administrative or executive action, and if the infringement occurs pursuant to a statute, the Court will demand that the statute express the wish of the legislature in the clearest, most precise, and narrowest fashion possible. Essentially what the Court is exacting is assurance that the judgment that speech should be suppressed is that of the full, pluralist, open political process, not of someone down the line, representing only one or another particular segment of the society; and assurance that the judgment has been made closely and deliberately, with awareness of the consequences and with clear focus on the sort of speech that the legislature wished to suppress.
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An accommodation relying on the diffusion and separation of powers is what the Pentagon Papers-New York Times case also amounts to in the end. Not long after the case was decided, in September 1971, the President invoked what is called executive privilege to deny to the Senate Foreign Relations Committee access to certain documents bearing on long-range plans for foreign military assistance. This was but one of numerous invocations of executive privilege, on the part of this and previous Presidents, and whatever the merits of this particular invocation of it, there is little doubt of the President’s authority, in general, to safeguard the privacy of executive deliberations by classifying documents and withholding them from Congress, and of course from the public. Yet under the New York Times case, if a newspaper had got hold of these documents without itself participating in a theft of them, although somebody else might to its knowledge have stolen them, it could have published them with impunity. And if someone stole these documents and brought them to Senator Fulbright, he could use them, and read them on the floor of the Senate if he chose, thus making them public, and there would be no recourse against him because of the immunity the Constitution grants to members of Congress in respect of statements on the floor, or for the matter of that, in committee.
Now this, to say the least, is a paradox. The government is entitled to keep things private, but with few exceptions involving the highest probability of very grave consequences, it may not do so effectively. It is severely limited as to means, being restricted, by and large, to enforcing security at the source. Members of Congress as well as the press may publish materials that the government wishes to, and is entitled to, keep private. It is a disorderly situation surely. But if we ordered it, we would have to sacrifice one of two contending values—privacy or public discourse—which are ultimately irreconcilable. If we should let the government censor as well as withhold, that would be too much dangerous power, and too much privacy. If we should allow the government neither to censor nor to withhold, that would provide for too little privacy of decision-making, and too much power in the press and in Congress. So we are content with the pulling and hauling, because in it lies the maximum assurance of both privacy and freedom of information. Not full assurance of either, but maximum assurance of both.
Madison knew the secret of this disorderly system, indeed he invented it. The secret is the separation and balance of powers, men’s ambition joined to the requirements of their office, so that they push those requirements to the limit, which in turn is set by the contrary requirements of another office, joined to the ambition of other men. This is not an arrangement whose justification is efficiency, logic, or clarity. Its justification is that it accommodates power to freedom and vice versa. It reconciles the irreconcilable.
Madison’s conception of the separation and diffusion of powers was intra-governmental, but the First Amendment, as the Pentagon Papers case demonstrated, extends it beyond government, so that it prevails not only among the institutions of government, but also between them and the private sector. The First Amendment offers us no formula describing the degree of freedom of information that is consistent with necessary privacy of government decision-making. Rather as the Supreme Court applied it, it ordains an unruly contest between the press, whose office is freedom of information and whose ambition is joined to that office, and government, whose need is often the privacy of decision-making, and whose servants are ambitious to satisfy that need. This is not to say that we can get along without any restraint or self-discipline on the part of government and the press in the discharge of their respective offices and in the ambitious pursuit by each of its interest. Not at all. But it is the contest that serves the interest of society as a whole, which is identified neither with the interest of the government alone, nor of the press.
The upshot in our system is that a whole series of defensive procedural entrenchments and an obstacle course of the diffusion of powers and functions lie between the First Amendment and claims adverse to it. Hence the direct, ultimate confrontation is rare, and when it does occur, limited and manageable. We thus contrive to avoid most judgments that we do not know how to make.
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