Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations

By Norman Vieira; Leonard Gross | Go to book overview

10
FREE SPEECH

While it may have been politically hazardous to attack Judge Bork's position on the establishment clause, issues of free speech provided an inviting target for Bork's opponents. Bork's views on freedom of speech were well documented. Moreover, some members of the Judiciary Committee thought those views were out of step both with Supreme Court rulings and with the sentiments of the general public.

In his article in the Indiana Law Journal,1 Bork had taken the position that only speech that is explicitly political should be given constitutional protection. Other forms of expression, whether "scientific, literary...or pornographic," he believed, provided no basis for protection under the First Amendment. Furthermore, even political speech would be unprotected if it advocated forcible overthrow of the government. The latter view was in direct conflict with the Supreme Court's decision in Brandenburg v. Ohio22 and was the subject of much discussion at the confirmation hearings. As Bork himself would concede, his theory of free speech might well "strike a chill into the hearts of some civil libertarians."3

An initial premise of Bork's article was that the history of the adoption of the First Amendment provided little help in developing principles of free speech. According to Bork, the Framers had no coherent theory of free speech and were not greatly interested in the subject. The amendment was hastily drafted, and because its history offered little assistance, the construction of a free speech theory was left to later development. Bork agreed that the very existence of the First Amendment indicated that "there is something special about speech." But at this point he committed what he described at the hearings as a "logical fallacy."4

Bork had stated in his article that freedom for political speech would have to be protected, even if the First Amendment did not exist. The fact that the Constitution creates a system of representative democracy would

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