The “Absolutist” View of the First Amendment, With a Note on “Preferred Position”.

During much of this period, the opposi-tion to the balancing test was led by Justices Black and Douglas, who espoused what may be called an “absolutist” position, denying the government any power to abridge speech. But the beginnings of such a philosophy may be gleaned in much earlier cases in which a rule of decision based on a preference for First Amendment liberties was prescribed. Thus, Chief Justice Stone in his famous Carolene Products “footnote 4” suggested that the ordinary presumption of constitutionality that prevailed when economic regulation was in issue might be reversed when legislation is challenged that restricts “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” or that reflects “prejudice against discreet and insular minorities . . . tend[ing] seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”532 Then, in Murdock v. Pennsylvania,

533 in striking down a license tax on religious colporteurs, the Court remarked that “[f]reedom of press, freedom of speech, freedom of religion are in a preferred position.” Two years later the Court indicated that its decision with regard to the constitutionality of legislation regulating individuals is “delicate . . . [especially] where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions.”534 The “preferred-position” language was sharply attacked by Justice Frankfurter in Kovacs v. Cooper,535 and it dropped from the opinions, although its philosophy did not.

Justice Black expressed his position in many cases but his Konigsberg dissent contains one of the lengthiest and clearest expositions of it.536 That a particular governmental regulation abridged speech or deterred it was to him “sufficient to render the action of the State unconstitutional” because he did not subscribe “to the doctrine that permits constitutionally protected rights to be ‘balanced’ away whenever a majority of this Court thinks that a State might have an interest sufficient to justify abridgment of those freedoms . . . I believe that the First Amendment’s unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in this field.”537 As he wrote elsewhere: “First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government.”538 But the “First and Fourteenth Amendments . . . take away from government, state and federal, all power to restrict freedom of speech, press, and assembly where people have a right to be for such purposes. This does not mean, however, that these amendments also grant a constitutional right to engage in the conduct of picketing or patrolling, whether on publicly owned streets or on privately owned property.”539 Thus, in his last years on the Court, Justice Black, while maintaining an “absolutist” position, increasingly drew a line between “speech” and “conduct which involved communication.”540

Footnotes

532
United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). In other words, whereas economic regulation need have merely a rational basis to be constitutional, legislation of the sort to which Chief Justice Stone referred might be subject to “more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment . . . .” Id. Justice Powell later wrote that footnote 4 “is recognized as a primary source of ‘strict scrutiny’ judicial review.” Lewis F. Powell, Jr., Carolene Products Revisited, 82 Columbia L. Rev. 1087, 1088 (1982). back
533
319 U.S. 105, 115 (1943). See also West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943). back
534
Thomas v. Collins, 323 U.S. 516, 529–30 (1945). back
535
336 U.S. 77, 89 (1949) (collecting cases with critical analysis). back
536
Konigsberg v. State Bar of California, 366 U.S. 36, 56 (1961) (dissenting opinion). See also Braden v. United States, 365 U.S. 431, 441 (1961) (dissenting); Wilkinson v. United States, 365 U.S. 399, 422 (1961) (dissenting); Uphaus v. Wyman, 364 U.S. 388, 392 (1960) (dissenting); Barenblatt v. United States, 360 U.S. 109, 140 (1959) (dissenting); American Communications Ass’n v. Douds, 339 U.S. 382, 445 (1950); Communist Party v. SACB, 367 U.S. 1, 137 (1961) (dissenting); Beauharnais v. Illinois, 343 U.S. 250, 267 (1952) (dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (concurring); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (concurring). For Justice Douglas’ position, see New York Times Co. v. United States, 403 U.S. at 720 (concurring); Roth v. United States, 354 U.S. 476, 508 (1957) (dissenting); Brandenburg v. Ohio, 395 U.S. 444, 450 (1969) (concurring). back
537
Konigsberg v. State Bar of California, 366 U.S. 36, 60–61 (1961). back
538
Bates v. City of Little Rock, 361 U.S. 516, 528 (1960) (concurring). back
539
Cox v. Louisiana, 379 U.S. 559, 578 (1965) (dissenting) (emphasis in original). back
540
These cases involving important First Amendment issues are dealt with infra, under “Speech Plus.” See Brown v. Louisiana, 383 U.S. 131 (1966); Adderley v. Florida, 385 U.S. 39 (1966). back