NO LAW by David L. Lange & H. Jefferson Powell

Author:David L. Lange & H. Jefferson Powell
Language: eng
Format: epub

With the retirements of justice black in 1971 and Justice Douglas in 1975, the Supreme Court’s membership has consisted entirely of justices who give the First Amendment a nonabsolute interpretation. In the opinion of most constitutional scholars this is as it should and indeed as it must be, for the majority view is that Black’s absolutism is both undesirable and, in the final analysis, unworkable. On the level of results, as the critics (correctly) observe, Black’s approach leaves unprotected much expressive behavior, despite the negative impact on civil-libertarian values, while disabling government from constraining expression certain to cause catastrophic harm. To be workable, furthermore, Black’s absolutism involves line drawing that is complicated and may not even make a great deal of sense. For example, Black sharply distinguished (protected) “speech” and (unprotected) “conduct,” a dichotomy that is difficult to apply in many circumstances: is burning a United States flag in order to express a political view “speech” protected by the First Amendment or “conduct” subject to regulation? (Black thought it conduct and subject to prohibition; in 1989 the Supreme Court held it to be expression protected by the free speech clause.)57 Black himself further complicated his approach by according First Amendment protection to some “conduct”58 while refusing to protect speech when “it is so closely brigaded with illegal action as to be an inseparable part of it.”59 The apparent simplicity of Black’s absolutism, in the words of the distinguished civil libertarian Henry J. Abraham, is in fact “[d]eceptive” and any workable and coherent interpretation of the First Amendment “necessarily” requires “balancing between individual and societal prerogatives and responsibilities.”60

In this book we do not intend to resolve the question whether Justice Black’s critics are right in attacking his First Amendment absolutism as unmanageable and internally inconsistent.61 We are, rather, immediately interested in certain aspects of his First Amendment jurisprudence that are usually not in focus, and (as the reader will see in later chapters) in the possibility that Black’s absolutism can be appropriately and consistently restated, in terms he himself only hinted at, in the contemporary interpretation and application of the First Amendment. Our first observation is that Black’s colleagues never squarely responded to the claim at the heart of his insistence on fidelity to the text of the First Amendment—that only by absolute textual fidelity could the Court enforce the First Amendment as a prohibition on government without implicitly treating it as a delegation of power to one branch of government (the judiciary) to make what are inevitably policy judgments about the relative value of expression and other (claimed) social interests. The Pentagon Papers case nicely illustrates the point. If we take them at their word, the Federalists and the Republicans of the Sedition Act crisis would have had little trouble in concluding, as did Justice Black, that the First Amendment simply forbade the imposition of a prior restraint on a publication of the sort at issue. While they disagreed vehemently over the amendment’s relevance to postpublication penalties, such as those

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