A Worthy Tradition: Freedom of Speech in America by Harry Kalven Jr., edited by Jamie Kalven (Harper & Row: $35; 698 pages)
If you had to guess when the first freedom-of-speech case reached the United States Supreme Court, what would you say? Would you be surprised to hear that it was as recently as 1919?
The First Amendment had been part of the Constitution since 1791, but in its first 128 years, the court had not been asked to explain the meaning of the words, "Congress shall make no law abridging the freedom of speech." Most people simply assumed that there were certain things one couldn't or shouldn't say, and few who didn't agree thought to test that idea.
In the not-quite 70 years since, the First Amendment has arguably become the richest vein in the law. Since ruling unanimously in 1919 that a person could be sent to prison for opposition to World War I (in an opinion by Oliver Wendell Holmes Jr., no less), the Court has had to return many times to the question of the limits of free speech. Just this week, the Court ruled that a high-school principal may delete articles from the school newspaper without violating the students' First Amendment rights.
Despite the best efforts of judges and scholars, there remains no easy answer, no principle that can be said with certainty to govern these cases.
Leading Legal Scholar
Harry Kalven Jr. was a leading legal scholar and one of the country's acknowledged experts on the First Amendment when he died at his desk of a stroke in 1974 while working on a manuscript. He was 60 years old.
The manuscript was his life's work, a book on the First Amendment. His son, Jamie Kalven, showed the unfinished work to other scholars, and they agreed that the material was too good to allow to die with Kalven. Now, following his father's notes and other published writings, and with the assistance of Prof. Owen Fiss of the Yale Law School, Jamie Kalven has finished his father's book.
It is a marvelous work that resonates with deep thought and graceful prose. It shows the legal mind at its best, wrestling with difficult problems, giving all sides a fair hearing and then coming to a wise conclusion. It bespeaks thoughtfulness and civility, a subtle weighing of ideas in tension.
If someone declares, "I am an absolutist on the First Amendment!" in some ways he has an easy task. His analysis is over in one sentence.
The Easy Position
But what does the absolutist say about perjury laws? Are they unconstitutional? What about the laws against false advertising? Are they abridgements of the freedom of speech? What would the absolutist say if someone stood outside his bedroom window at 2 a.m. with a bullhorn and made a speech? Would he recognize the speaker's First Amendment rights, or would he call the police?
Absolutism on the First Amendment is an easy position, but in the end it is not tenable. Ultimately everyone draws a line beyond which the harm of the speech outweighs the value of permitting it. Where to draw the line is a question of no small disagreement.
As Kalven points out, the best position is to say, "I am almost an absolutist on the First Amendment," and around that word almost he has written a 600-page book.
It is an odd book in some ways because it stops in 1974. It leaves out some topics and gives too much or too little emphasis to others. There are large gaps in what have become important areas of First Amendment law: broadcasting, for example; campaign contributions and spending; commercial speech; right of access. Obscenity, a continuing topic for the court, is relegated to a small chapter. Half of the book is about freedom of association, a subject that was fresh in mind in the 1960s and early '70s but that has withered on the vine since.
A Compelling Book
Still it is a compelling book, closely reasoned from case to case and celebrating how much speech the Supreme Court has protected in this century. Kalven writes:
"Although (the court) has failed to find a single test by which to resolve all speech problems, it has functionally held the censor to minimal jurisdiction in each category while abstaining from philosophic sweep. What the opinions have lacked in philosophic tone and eloquence, they have to my mind more than made up in pragmatic results."
Kalven is not chagrined by the sloppiness of First Amendment doctrine. He is intrigued by it. The tensions-- a word he uses repeatedly--are what make the law vibrant.
But where to draw the line between permissible and impermissible speech? To say that the Supreme Court began struggling with this question in 1919 is accurate though slightly misleading. To be sure, the Court decided Schenck vs. United States in that year, with Holmes promulgating his "clear-and-present danger" test, which, he explained, was like falsely shouting fire in a crowded theater.
Schenck and his associates were found guilty, the court said, because distributing leaflets urging men to avoid the draft presented a clear and present danger to the United States war effort.
Kalven traces the cases--Schenck, Debs, Abrams, Gitlow, Whitney vs. California, and the great dissents of Holmes and Louis D. Brandeis--until he comes to Brandenburg vs. Ohio in 1969, which, he says, united Hand and Holmes. Speech may be forbidden, the court said in Brandenburg, when it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Incitement plus danger. Kalven's book is an eloquent statement of the primacy of free speech in a democratic society and of the need to safeguard it in almost every circumstance. Though the book is 14 years out of date, its vitality demonstrates the ongoing depth of this issue.