No Law: Intellectual Property in the Image of An Absolute First Amendment

By David L. Lange; H. Jefferson Powell | Go to book overview

CHAPTER 10

Justice Black and the Absolute
First Amendment

THE IMPLICATIONS OF THE APPROACH to First Amendment free speech issues adumbrated in Justice Holmes's dissent in Abrams remained unclear for some time. In part this was because of Holmes's own uncertainty concerning precisely what it was he was saying about the First Amendment's meaning and application, in part because from Abrams until near the very end of Holmes's tenure on the Court, he and Justice Brandeis never found themselves in a majority on the interpretation of freedom of speech. Holmes and Brandeis forged a speechprotective construction of the Constitution not only to protect dissenters but as dissenters, and they had neither need nor opportunity to explore the systematic implications of taking the First Amendment seriously as a limitation on governmental power. Their immediate task, and it doubtless seemed enough, was to maintain their claim about the Constitution's solicitude for expression by political dissidents in the teeth of state and federal governments seemingly bent on eliminating “radical” speech.

After 1930, under the new chief justice, Charles Evans Hughes a majority on the Court emerged which was prepared to accept the free-speech views of Holmes and Brandeis. The decade of the 1930s was, of course, a tumultuous and critical period in American constitutional history. Both on the federal and the state levels, legislators and executive officers reacted to the Great Depression in a fury of governmental initiatives, and the Supreme Court in its turn lurched uncertainly from an initial willingness to find accommodations between traditional constitutional norms and novel exercises of power, through a brief but intense negative reaction, to what proved to be a settled acquiescence, after 1937, in a degree of governmental regulation, particularly by the federal government, that was unprecedented. Beneath the surface swings in the Court's decisions, however, there were deeper intellectual trends, trends that

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