Freedom of speech

Justice Holmes, joined by Justice Brandeis, in his dissent in Abrams v. United States:

... 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. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Justice Brandeis, joined by Justice Holmes, in his concurrence to Whitney v. California:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Where there is injustice ...

A quote from Chief Justice Earl Warren; it is apparently the epitaph on his grave stone:

"Where there is injustice, we should correct it; where there is poverty, we should eliminate it; where there is corruption, we should stamp it out; where there is violence we should punish it; where there is neglect, we should provide care; where there is war, we should restore peace; and wherever corrections are achieved we should add them permanently to our storehouse of treasure."

Justice Harlan on protecting liberty with the Fourteenth Amendment

Excepts from his dissent starting on page 523:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. ... The balance of which I speak is the balance from which [our country] developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. ...

[The character of the Constitutional protection of liberties] must be discerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of history and purposes, the full scope of the liberty guaranteed by the Due Process Clause [of the Fourteenth Amendment] cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints ...

It is the purposes of these guarantees and not their text, the reasons for their statement by the Framers and not the statement itself, [ ] which have led to their present status in the compendious notion of "liberty" embraced in the Fourteenth Amendment.

Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. ... The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take "its place in relation to what went before and further [cut] a channel for what is to come." (citing Irvine v. California, dissent).

This sounds pretty prophetic to me.

America's Prophets

I'm reading America's Prophets - How Judicial Activism Makes America Great by UH Law Center professor David Dow. In the book, Dow describes the function of the biblical prophets in ancient Israel as cultural course correctors; their role was to tell the public when their practices were contrary to higher law. The prophets were, in effect, the visionaries who had the courage to tell the majority "no" when necessary.

In contrast, the priests were the ones who maintained cultural continuity; it was their job to preside over and defend norms of long standing. It was their job to look to the past for guidance. This metaphor is from page 11:

... We can think of priests and prophets as judges taking a ride together on a train. The priests are seated facing the rear. They can see backward along the rails all the way back to the depot from which the train began its journey. They believe that their job is to be experts on all that has transpired between the origin of their culture and the location at which they reside at the moment. The prophets face sideways. Turning their heads one way, they see what the priests see. Turning their heads the opposite direction, they see forward. They cannot see to the end of the track, perhaps, bu they can see some distance into the future. Of course, to continue with this metaphor, there will be spots in the future that the prophetic judge, no matter how keen her vision cannot see. ... Nevertheless, the prophetic judge can see some distance into the future, and the prophetic judges believe that their job is to ascertain, based on the vector from which they have come, where they are going.

How is a US Supreme Court justice like a prophet in the Bible? In our political system, the Constitution provides the higher law, the foundational framework against which all legislation must be measured. Like the Jewish prophet who warns the people when they stray from their fundamental goals and principles, the activist judge is in the position of saying "no" to the Congress and the majority it represents, when the Congress (or a state) attempts to enact a law which runs counter to the Constitution. This is not a comfortable role for a judge to play; as any parent knows, saying "no" invites an emotional backlash. Without judges performing this role, however, we run the risk of subjecting less powerful groups to the tyranny of the majority, a concept first described by Alexis de Tocqueville, and later mentioned in the Federalist papers.

Are these "activist judges" imposing their personal morality, ethics, or interpretation of the Constitution on the rest of us? Or are their decisions based on a strict application of legal reasoning to the text and principles of the Constitution? Dow gives us the examples of Plessy v. Ferguson and Brown v. Board of Education as examples of "priestly" and "prophetic" approaches to racial equality, and promises to visit other similarly controversial examples of "activism" later in the book. He asserts that the prophetic course corrections are grounded in good law and reasoning; they would have to be, given the decisions and rationale are all public. However, I've not yet read his analysis of the various cases; those are later in the book.

On a related note, can "activist" judges on the US Supreme Court be identified by their ideology? Some interesting research from Dow and collaborators:

A study of the last ten years of the Rehnquist Court reveals that a justice's deference score* depends on something besides a judge's simple belief that the majority should be free to do as it sees fit. For example, the same justices who are most willing to tell the majority no when Congress intrudes on individual liberty (i.e., Justices Stevens and Souter in the aforementioned study) are least willing to tell the majority no when Congress intrudes on the states. Conversely, the justices most protective of the states, and therefore most willing to tell Congress no when it interferes with state power (i.e., Justices Scalia and Thomas), are least willing to tell Congress no when it interferes with individual rights. ...

I'm not even half way through the book, and I find it fascinating, hard to put down. The idea of the judiciary as a brake on the majority is a concept I've been trying to articulate and logically frame for myself for a while, and here's a book by an author who's thought it through and is a compelling writer. I'm hooked.

* A judge's deference score describes how often a judge defers to Congress and the majority it represents. A judge receives a positive score (+1) for each time he or she votes or holds that the law is consistent with the Constitution, and need not change. A judge receives a negative score (-1) for each time he or she decides a law is unconstitutional.

Deeper in

I'm reading Karl Llewellyn's lectures collected in The Bramble Bush, the 2008 Oxford University Press edition, and thought I'd share another quote: this one is about assuming institutions are just so because that's the only way they could be arranged. This quote is preceded by a description of what courts and judges do, which I omit.

... I take time to say this because I deem it important that early, very early in this game you meet some counterweight against what I may call the unconscious snobbery of social institutions: against the touching faith that the current rationalizations of an institution, first, fit the facts, second, exhaust the subject, third, negate other, negate better possibilities. Nowhere more than in law do you need armor against that type of ethnocentric and chronocentric snobbery -- the smugness of your won tribe and your own time: We are the Greeks; all others are barbarians. ...

I offer the above quote to those who argue that a market based or private insurance solution to our health care crisis is important because the United States has a "tradition" of such things (a very recent one, to be sure). If that were not enough, Paul Krugman shares this report by Kenneth J. Arrow, excerpts of which are available from the World Health Organization web site; it's an economist's analysis of the factors which contribute to the observation that a market based approach does not provide optimal solutions to the pricing and provision of health care.

Question everything!

Entering the Bramble Bush

I've started reading Karl Llewellyn's lectures collected in The Bramble Bush, the 2008 Oxford University Press edition, and found these passages from Chapter 1. I may be republishing other interesting excerpts as I find them. Emphases are are in the original.

... We have discovered in our teaching of the law that general propositions are empty. We have discovered that students who come eager to learn the rules and who do lean them, and who learn nothing more, will take away the shell and not the substance. We have discovered that rules alone, mere forms of words, are worthless. We have learned that the concrete instance, the heaping up of concrete instances, the present vital memory of a multitude of concrete instances, is necessary in order to make any general proposition, be it rule of law or any other, mean anything at all. Without the concrete instance the general proposition is baggage, impedimenta, stuff about the feet. It not only does not help. It hinders. ...

... You may have missed in this discussion the common idea that the law is right, that rules of law are to be obeyed because they are right, that men have duties to uphold the law. Such ideas are not missing because they have been overlooked. They are left out because you may fairly be expected to be well aware of them already. They are left out, too, because they contain truth so partial, so faulty, as to cry out for revision in the light of some such analysis as I have been presenting. They are left out because at this stage of your approach to law your common sense is rather in the way than otherwise. Let me here say only this about rightness of the law. That if most people did not stand behind the officials, however passively, there would be little law to talk about. That if most people did not most of the time when they looked at a rule look to its purpose as well as to its exact and narrow form, and fit their conduct roughly to that purpose, then the officials would have been a burden on their hands they could not bear. And, finally, that if most people shaped their conduct really with reference to the law and to their legal rights, for any serious fraction of their time, rather than with reference to the patterns of action, the patterns of thought, the standards of judgment which they inhale as the social atmosphere they breathe, then life in our society would become unlivable. ...

I offer this in part as a response to those who look at the actions of those responsible for the current crisis in mortgage backed securities and who say "nevertheless, what they did was legal". This would also be applicable to those who excuse the actions of our government's agents toward those in its detention centers because of some technical justification by the Bush Administration's Office of Legal Counsel. Just because someone can twist the words of the law to justify reprehensible actions doesn't make those actions any less wrong.