The Well & the Stars

Outside the West End Women's Club in Chicago, a mob choked the street. Inside, that night in 1946, a rabble-rousing, unfrocked Roman Catholic priest named Arthur Terminiello (since reinstated) was making a speech. On the platform with Terminiello was his soapbox bullyboy pal, Gerald L. K. Smith. Terminiello incited his audience with a fascist line of invective and bate. The mob outside hurled bricks, stink bombs, bottles and ice picks-through the windows and tried to break in the doors. Chicago police were just barely able to hold them in check and prevent a full-scale battle of the streets. Terminiello was arrested under a Chicago ordinance which declares it unlawful to create a "diversion tending to a breach of the peace."

He was found guilty and fined $100--a conviction which was upheld by two Illinois courts. He took his case to the U.S. Supreme Court, which last week handed down its decision. By a majority of one, in an opinion written by liberal Justice William Douglas, it reversed Demagogue Terminiello's conviction.

To Invite Dispute. It did so in a peculiar fashion. The majority did not pass on the validity of the Chicago ordinance; it objected instead to the way the trial judge had construed the ordinance in his instructions to the jury. He had defined "breach of the peace" to mean misbehavior which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates disturbances . . ."

Pouncing on this point, the majority said: "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." Freedom of speech, they said, could not be denied unless it created, in the late Oliver Wendell Holmes's classic phrase, "a clear and present danger" to public safety and welfare.

Whether Terminiello's performance was likely to have caused a riot and resulted in people getting hurt, the justices of the majority did not try to decide. Their decision was praised by Roger N. Baldwin, executive director of the American Civil Liberties Union, who argued that otherwise any meeting could be broken up "where opponents alleged that it was likely to rouse them to violent protest."

To Invite Anarchy. Chief Justice Vinson was among the dissenters; since no one in the lower courts had questioned the point, he denied the right of the Supreme Court to "ferret out" the judge's instructions and attack them. He thought this was meddling with state courts.

Justice Jackson had a bigger and broader objection. In his angry dissent, the man who was chief U.S. counsel at the Nuernberg trials brought into focus the dilemma of democracy: how to keep its freedoms without delivering itself to its enemies. To Jackson it was clear that Chicago had a clear right to curb a Terminiello, and that the judge's definition was a practical recipe for a concrete situation.

Wrote Justice Jackson: "An old proverb warns us to take heed lest we 'walk into a well from looking at the stars.' "He thought his colleagues had set up "a dogma of absolute freedom for irresponsible and provocative utterance" which would almost completely hog-tie local authorities.

"This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen . . . There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."

Between them, the majority and minority had managed to confuse further the complex line which defines the reasonable limits to freedom of speech.

Some men looked at the stars. Some men looked in the well. Terminiello saved his $100.

This file is automatically generated by a robot program, so reader's discretion is required.