Fraenkel, Osmond K.

English

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Free Speech and Its Relation to Self-Government by Alexander Meiklejohn

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BooK REvEws 167Louisiana State Board of Education,2 4 which unanimously held that a state can appropri-ate money to farnish text books to pupils in private as well as in public schools, "concedesgreater rights to the state" than Meyer v. Nebraska, and Pierce v. Society of Sisters.Some of these same errors appeared in the earlier edition, published in 1934 underthe title of The Legal Status of Church-State Relationships in the United States. .We couldwish that the earlier title-which avoids confusion between catchwords and principles-had been retained.PORTER R. CHANDLER.Member of the New York Bar.FREE SPEEcH AND ITs RELATION TO SELF-GOVERNMENT. By Alexander Meiklejohn. NewYork: Harper Bros., 1948. Pp. xiv, 107. $2.00.Whenever an intelligent layman discusses the law, the result is often like that of thechild in the fairy tale who sees that the emperor has been wearing no clothes. Thisbook gives such a fresh outlook and revaluation to material often taken for granted.Professor Meildejohn starts with the concept that the Bill of Rights is an integral partof self-government and that the First Amendment means what it says. He therefore takesthe position that Congress may not enact any law which abridges freedom of speech.Nevertheless he concedes that under certain circumstances speech can be prohibited. Heattempts to resolve this apparent paradox by distinguishing between "public" and "private"speech, a distinction which, however, he does not adequately develop.Thus Professor Meiklejohn insists that no policy may be denied a hearing and nopersons barred because "their views are thought to be false or dangerous. No plan ofaction shall be outlawed because someone in control thinks it unwise, unfair, un-Ameri-can... ." It is this mutilation of the thinking process against which the First Amend-ment to the Constitution is directed. On the other hand, he points out that liberty ofspeech may be curtailed, provided the procedures are proper, under the Fifth Amendmentwhen the speech is private, like that of a merchant advertising his wares or a paid lobbyist.These simple instances, however, do not exhaust the category of private speech whichthe author believes can, under some circumstances, be prohibited. Professor Meiklejohndoes not, for instance, meet the issue of whether the advocacy of the overthrow of thegovernment by force may be punished; for he says only:Third, the theory fails to recognize that, under the Constitution, the freedom ofadvocacy or incitement to action by the government may never be abridged. It isonly advocacy or incitement to action by individuals or nonpolitical groups whichis open to regulation.2Professor Meiklejohn's main thesis is that the courts have ignored the distinction hebelieves to be essential and reduced the area of freedom. He particularly criticizes JusticeHolmes' formulation of the "clear and present danger" rule, saying:Mr. Holmes and the Supreme Court have ventured to annul the First Amendmentbecause they have believed that the due process clause of the Fifth Amendmentcould take its place 3Professor Meiklejohn rejects the Holmes distinction between speech as action and2L281 U. S. 370 (1930).1 P. 26. 2 P. go. ' Pp. 39-40.LAW AND CONTEMPORARY PROBLEMSspeech as thought, but he agrees with Holmes (as stated in his dissent in the Abramscase) 4 that incitement cannot be the dividing line either, pointing out:He [Holmes] demands freedom not merely for idle contemplation, but for thevigorous thinking and deciding which determine public action.6The author suggests that the clear and present danger test has really been modified bysubsequent decisions which permit punishment only where the circumstances indicate"extreme gravity." He quotes with approval from Justice Brandeis' elaboration (in theWhitney case)' of the meaning of the element "present" contained in the test:: . . no danger flowing from speech can be deemed clear and present unless theincidence of the evil apprehended is so imminent that it may befall before there isopportunity for free discussion.7Professor Meiklejohn interprets this modification of the rule as forbidding interferencewith speech while "the civil processes of discussion and education are available." Hesuggests that only when ordinary life has broken down can discussion be stopped, andthen all discussion must be stopped, not merely that of one group alone, saying:When the roof falls in, a moderator may, without violating the First Amendment,declare the meeting adjourned.9Professor Meiklejohn criticizes not only the courts but writers on the law as well.He disagrees with Professor Chafee,10 who also has stressed the individual and social in-terest in free speech, because Chafee apparently considered that both interests were alikeguaranteed by the First Amendment. According to Meiklejohn, the public interest isguaranteed by the First Amendment and is absolute. The private interest, he says, isprotected only by the Fifth Amendment and can, therefore, under proper conditions, beregulated. In the cours6 of this discussion he points out the need for freedom to listento all kinds of ideas:Shall we, then, as practitioners of freedom, listen to ideas which, being opposedto our own, might destroy confidence in our form of government? Shall we givea hearing to those who hate and despise freedom, to those who, if they had thepower, would destroy our institutions? Certainly, yesl Our action must be guided,not by their principles, but by ours. We listen, not because they desire to speak,but because we need to hear. If there are arguments against our theory of govern-ment, our policies in war or in peace, we the citizens, the rulers, must hear andconsider them for ourselves. That is the way of public safety. It is the programof self-government.1 'The book doses with a disquisition on the general ideas of Justice Holmes, whom theauthor criticizes as too individualistic. He particularly takes issue with Holmes's statementin the Abrams case that freedom of expression is guaranteed because of the need to testthe truth of ideas in competition with others. This, says Professor Meiklejohn, is but apartial reason. In his view the basic reason is that for man to be self-governing he musthave access to all ideas, both true and false:'Abrams v. United States, 250 U. S. 616, 624 (I9M9).5 P. 45.Whitney v. California, 274 U. S. 357, 377 (1926).TP. 53.8 P. 54.SP. 55.Z o Em CutAFEE, JR., FREE S'EcH iN TnE UNiTW STATES (1941).11Pp. 65-66.BOOK REviEwsThe First Amendment is not, primarily, a device for the winning of new truth,though that is very important. It is a device for the sharing of whatever truth hasbeen won. Its purpose is to give to every voting member of the body politic thefullest possible participation in the understanding of those problems with whichthe citizens of a self-governing society must deal.12On the other hand, Professor Meiklejohn considers the possibility that under modernconditions there may have to be some restriction on the freedom of scientists because ofthe development of atomic and bacteriological warfare:Under present circumstances it is criminally stupid to describe the inquiries ofscholarship as merely "the disinterested pursuit of knowledge for its own sake."Both public and private interests are clearly involved. They subsidize much of ourscholarship. And the clashes among them may bring irretrievable disaster tomankind. It may be, therefore, that the time has come when the guarding of hu-man welfare requires that we shall abridge the private desire of the scholar-or ofthose who subsidize him-to study whatever he may please. It may be that thefreedom of the "pursuit of truth" must, in that sense, be abridged.l 3He also suggests that the radio is not entitled to the protection of the First Amendmentbecause, as now conducted, it is merely a business enterprise. This, of course, flies inthe face of the many decisions which have guaranteed freedom to newspapers despite thefact that they also are business enterprises.The sum and substance of the matter is that Professor Meiklejohn, while he haswritten a provocative book, has not thought his ideas through and has left his subject inalmost as much confusion as he found it.OsmoNm K. FRaENxr.L.Member of theNew York Bar.12 P. 88.13 Pp. 99-1oo.

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Free Speech and Its Relation to Self-Government by Alexander Meiklejohn

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