Minority Opinion

Congress shall make no law . . . abridging the freedom of speech, or of the press.

--First Amendment to the U.S. Constitution

A publisher peddles filth through the mails. In some public square, a Communist advocates violent overthrow of the U.S. Government. Elsewhere, federal employee blabs security secrets to anyone who will listen. Long before a man accused of murder comes to trial, a newspaper recommends hanging. What should be done about the pornographer, the Communist, the spiller of state secrets, the newspaper that beats justice to the bar?

U.S. Supreme Court Justice Hugo L. Black has spent much of his long and turbulent career arguing his conviction that nothing at all should be done. He maintains that the First Amendment to the U.S. Constitution, guaranteeing absolute freedom of speech and the press, leaves such offenders beyond the reach of any law. In the current issue of the New York University Law Review, Justice Black extended his version of the Bill of Rights even farther. "I have no doubt myself," said he, "that the provision intended that there should be no libel or defamation law in the United States Government, just absolutely none." Right to Speak. Even N.Y.U. Law Professor Edmond Cahn, whose dialogue with Justice Black forms the basis of the Law Review article, seemed astonished at Black's stand. Did that mean, Cahn asked, that a U.S. citizen is free to say or print anything, anywhere, any time, and get away with it? Said Black firmly: "My view is, without deviation, without exception, without any ifs, buts or whereases, that freedom of speech means that you shall not do something to people either for the views they have or the views they express or the words they speak or write." With this startling pronouncement, 76-year-old Hugo Black revived a legal argument that is as old as the Constitution itself. Does the Bill of Rights grant an absolute and inalienable freedom of speech and press, or may such rights be restricted for the common good? For nearly 120 years--from 1798, when the short-lived Alien and Sedition Acts* were added to the federal statutes, until 1917, when the wartime Espionage Act prohibited statements that might aid the enemy --Congress enacted no laws at all directly abridging the citizen's right to speak and print whatever he chose. But no one proposed that the Bill of Rights, which was attached to the Constitution in 1791. nullified the more venerable laws governing libel and slander, which were part of the nation's inheritance from England. Time and again, the U.S. Supreme Court has sustained the view that an individual's right to speak and print freely must give way to the Government's right of self-preservation and to the individual's right to claim and collect damage from a slanderous or libelous attack.

Dubious Ground. From such decisions Hugo Black, an Alabama lawyer and U.S. Senator who in 1937 became Franklin D. Roosevelt's first appointee to the Supreme Court, has vigorously dissented. Justice Black argues that freedom of speech and the press "must be accorded to the ideas we hate, or sooner or later they will be denied to the ideas we cherish." But in extending protection last week to liars, libelers and slanderers. Justice Black found himself almost alone.

In the controversy that predictably followed publication of his remarks, few voices were raised in his defense. The New York Post, a self-anointed bastion of civil liberty, regretfully declined to "follow him on to this dubious high ground." Said the Post: "The Justice's position must surely seem fantastic. It would literally deprive both the highest and the lowest citizen of the right to serious recourse against reckless defamation. It would place in the hands of the press an almost unlimited power to destroy." "My own view," said R. Newton Rooks, president of the Chicago Bar Association, "is that I would hope that the law would never fully support Black's view." In San Francisco, David E. Snodgrass, dean of the University of California's Hastings College of the Law, felt that "Black has gone off the deep end on this one." Against such critics Justice Black preserved the traditional silence of the nation's loftiest bench. But few newspapers and magazines are likely to follow his lead and challenge the libel laws. The press is well aware that Justice Black's extreme position is--to put it in lower case--a minority opinion.

* The Acts empowered the President to export any alien deemed dangerous to the country and to punish journalists for printing anything detrimental to the national interest. A journalist, John Peter Zenger, was brought to trial under the Sedition Act, but a jury found him innocent. By 1801, both laws had vanished from the federal statute book.

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