The Precious Freedom of Expression
IF WE AMERICANS have, and practice, "ambivalence"1 as our primary ideology, the area of the precious freedom of expression is a case in point. The commonplace expression "It's a free country, isn't it -- so I can darn well say what I please!" is in fact sincere, for its underlying philosophy is ingrained in the body politic's notion of what democratic America means. But its paradox is that throughout history we so often permit, wink at, even encourage, its violation in practice. Thus we have been quite willing to curb the "dangerous," the "seditious," the "subversive," the "prurient," the "obscene," the "libelous," and a host of other presumably undesirable modes and manners of expression that -- at a particular time and place -- seemed to justify repression. Yet, unless we accept the absolutist approach advocated so consistently by Mr. Justice Black and his supporters, the need to draw some line is primary.
Black observed in a famous 1941 dissenting opinion:
Freedom to speak and write about public questions is as important to the life of our government as is the heart of the human body. In fact, this privilege is the heart of our government! If that heart be weakened, the result is debilitation; if it be stilled, the result is death.2
Mr. Justice Brandeis, whose last two years of service on the bench of the highest court coincided with Black's first two, tried to provide a memorable guideline when, in a concurring opinion joined by his____________________