A Worthy Tradition – Editor’s Introduction
“Whatever else it may or may not be, it is turning out to be the book I always wanted to write.” I find these words in a letter from my father dated September 1, 1973. Mailed from a vacation cottage on Martha’s Vineyard, the letter crackles with characteristic gaiety:
I spent the first four weeks here post-sunrise slowly carefully rereading my 800 pages of manuscript and doing some shuffling of pieces. The news is that I found it just swell! … I am now clear that the effort to document a tradition is sound, especially for thistradition. Anyway I now estimate, I’m still 600 pages away from completion (but I can almost touch the end). With editing the total length should be 1300 plus ms pages or two nicely printed 375 page volumes! Now all I need do is to get [my] editors … out here to read it amidst swans, rabbits, and egrets! Anyway I’m promised Fall 1974 off, and with the six months starting next June, really hope to bring it to a close. Mother, I should add, liked all the many passages I read aloud to her!
The manuscript on which my father was working with such appetite was an essay on the American constitutional experience under the First Amendment: the book in your hands. Conceived early in his career, it had long been deferred while he worked on other things. He had ranged widely during his career as a law professor at the Universitv of Chicago: he taught torts and was the co-author of a leading casebook in the field; he did pioneering work in the application of social science research techniques to legal institutions; and he had a lively interest in a range of other legal matters. Yet, by his own account, it was the constitutional law on freedom of speech that engaged him most deeply.
The First Amendment, he observed more than once, has “a charisma” that sets it apart from other rules of law. Whatever its merits as a generalization, this was certainly true for him. There is something telling about his choice of the word “charisma” from among the many he might have used to make a general point about the specialness of the First Amendment. It speaks to his experience, to what the subject summoned from him. He was a member of that select company of critics–whatever their fields, they have much in common–whom one values not only for their erudition and judgment but also for their heightened capacity for response: a sensitivity–a vulnerability—to the impact of their chosen genre coupled with the ability to report on what they have seen and felt.
Almost all his writings on freedom of speech, prior to this book, were produced in response to controversies of the moment. His agenda was set by his times. In the 1950s he wrote extensively about abuses of the legislative investigation process and about other loyalty-security issues of the day. In the 1960s, as the Warren Court extended the reach of the First Amendment, he scouted the new terrain. He wrote a book on the contributions of the civil rights movement to free speech doctrine, and in a series of influential articles explored the issues posed by public demonstrations, obscenity, and libel.
Finally in 1970 he cleared his desk of other commitments and set to work on the book he had “always wanted to write.” His plan was to pull together in one place the analyses of various problems he had developed over the years in scattered articles and in class. He aspired to survey the entire corpus of the Supreme Court’s work on issues of freedom of speech and association. To get it all into a single book. To see it whole.
This was not just another book in the life of a productive scholar. He began it in the aftermath of a heart attack and two years later suffered a stroke. He accepted these betrayals of his body with grace, but there is no question they deepened the importance the book held for him. It is my impression that he worked with a rare quality of attention during those years. I know he lived that way.
Before he wrote a word, he reread in chronological sequence all the First Amendment cases decided by the Supreme Court. Then he began to write—a bit uncertainly at first, then with gathering force. He wrote without revising. Each summer he would reread his growing manuscript and write comments in the margins—sketching revisions, flagging additions, sometimes directly challenging the substance of the text. He did not act on these notes. Problems, once noted in the margin, could wait. He wanted to maintain his momentum, his forward sweep through the cases. (“I can almost touch the end.”) Then, in the fall of 1974, at his desk, working on the manuscript, he died. He was sixty years old.
He bequeathed an unfinished first draft of over a thousand pages heavily embroidered with marginalia. This manuscript posed a dilemma to which there could be no fully satisfactory solution. Unpublishable in the form he left it, it was too good to put aside, too precious to cede to death. Working closely with Professor Owen Fiss of the Yale Law School, I have edited and, where necessary, supplemented the manuscript. This book is the product of that effort: my father’s manuscript conveyed to the reader by other hands.
No effort has been made to complete the book. Nor have we updated it beyond the time of my father’s death; this is a study of the First Amendment tradition through 1974. The objective of the editing has been to make it the clearest possible reflection of my father’s thinking on the First Amendment—to recover, insofar as possible, his full meaning from the ambiguities and unresolved tensions of his first draft. In the afterword I describe some of the problems we encountered and some of the editorial strategies we employed in pursuit of that objective.
The balance of this introduction is devoted to prefatory points my father intended to make and to telling you a little about the mind you will encounter in these pages. In addition to his published work, I have drawn for this purpose on notes he generated in the course of working on this book and on lecture notes for the First Amendment courses he taught in 1971 and 1974—remnants of the animated conversation about freedom of speech he carried on from year to year with successive generations of students.
The First Amendment poses a question: what is “the freedom of speech” of which it speaks? On hundreds of occasions over the last sixty-odd years that question has been put to the United States Supreme Court. HK likens this body of experience to a Socratic dialogue:
There has been over the years at the level of the Supreme Court a sort of Socratic dialogue going on between the Court and the society as to the meaning of freedom of speech. “Tell us, Socrates, what is freedom of speech?” As with Socrates, the dialogue appears to be eternally open-ended—a definitive, fully understood answer will never be reached and so the process must go on with another and yet another question being put.
This dialogue is, in some respects, peculiar. The Court, unlike the philosopher, is not free to pursue an inquiry of its own design; it is limited to answering the questions presented – often in haphazard, random sequence – by the society. And the pattern of questioning over time is odd. Some questions are asked again and again, while others, equally or more important, are rarely, if ever, raised.
The shape of the legal dialogue–what it takes in, what it does not–fascinated HK. He noted that the map of issues yielded by the dialogue is “skewed” when laid beside the map suggested by a philosophic discussion of freedom of speech such as John Stuart Mill’s On Liberty:
It is skewed in the sense that the incidence of litigation and hence the expenditure of thought and effort by the justices have centered on problems the philosopher may well not have been aware existed.
HK found this a pleasing datum. It underscored what he saw as distinctive about the legal perspective: its immersion in the problems that actually arise in the society, its direct experience with the practical requirements of the norm. The dialogue is, he observed, “marvelously seasoned by experience.”
He also saw in the contrast between the legal and philosophic perspectives a reassuring reflection of how well-favored the American experience has been: certain questions have not arisen, because the answers have been largely assumed. It was with this perspective in mind that he chose to open this book with a chapter on “the consensus on untouchable content” — areas where there is substantial agreement that the content of speech cannot be reached by law.
There is, however, another perspective on the disproportions of the dialogue which is less reassuring. One of HK’s notes reads: “it’s a nice point that the philosophic map is so skewed; it is a disturbing point, however, that the sociological map is so skewed due to three facts: the sheer weight of broadcasting, the sheer weight of advertising, and the ownership of the means of communication.” The centrality of broadcasting in American life—the fact that it embraces so much of our public discourse—is scarcely reflected in the Court’s First Amendment oeuvre; there are only a few cases. Nor has the Court had much experience with the implications for freedom of speech of the economics of mass communications. Does the First Amendment, addressed as it is to government censorship, have any bearing on the power for private censorship that is conferred by concentrated ownership of the means of communication? The Court is yet to engage this question in a sustained way.
In another note HK listed areas in which the Court has, for one reason or another, been unable to give full expression to First Amendment values: immigration and deportation, where the government exercises virtually unqualified power; legislative investigation, where the Court is hobbled by the institutional realities of its relationship to Congress; and, again, “broadcasting!” and “economics.” Surveying this list, he noted “the danger that all or almost all really important areas are left outside Court’s 1st A scrutiny.” Although this should perhaps be discounted somewhat as the sort of overstatement notes to oneself allow, it testifies to his awareness of the incompleteness of the dialogue—an awareness he sought to maintain, even as he celebrated the tradition that dialogue has engendered.
The law’s experience is also, HK stressed, surprisingly recent. The First Amendment has been part of the Constitution and of American life since 1791. Yet it was only during World War I that the process of defining freedom of speech by means of judicial review really got started. Since then the legal dialogue has steadily accelerated. This can be dramatized in several ways. For example, as of the cutoff date of this book, 1974, more than 50 percent of all First Amendment cases had been decided since 1959—in other words, more than half were the work of the Warren Court. Justices Holmes and Brandeis, widely perceived as the “architects” of First Amendment doctrine, participated in some thirty-four cases; Justice Brennan has participated in well over three hundred. When Zechariah Chafee wrote the first edition of his influential Free Speech in the United States in 1920, there were about twenty cases. When Alexander Meiklejohn in 1949 delivered the lectures that were to become Free Speech and Its Relation to Self-Government, there were roughly a hundred cases. In 1974 HK, at work on this book, counted over four hundred. Finally, the recency of the dialogue can be characterized in more personal terms: it unfolded during HK’s lifetime, most of it during his career as a legal scholar.
The dialogue has not only accelerated in recent years; it has also been fertile in generating a variety of problems to test the norm. Contemporary free speech issues are strikingly different from those that faced Holmes and Brandeis, Chafee and Meiklejohn. They were concerned almost exclusively with the issue posed by the use of criminal sanctions to prohibit subversive advocacy. That problem remains of central importance today, but it has been joined by a host of other issues posed by diverse categories of speech and by different sorts of sanctions.
The recency of the dialogue–and its exfoliation into new areas–have presented an inviting challenge to scholars. As HK put it in a note, “1st A recency permits total sweep as something more than history.” Hence the desire to encompass it all in a single essay: the aspiration to find—amidst the great buzzing, blooming confusion of the field—an underlying unity.
The primary expression of that aspiration has been the quest for a unified general theory of the First Amendment. HK was sharply ambivalent about this quest. Indeed, he persuasively stated both the case for seeking such a theory and the case for not expecting to find one. In the introduction to The Negro and the First Amendment he puzzles over why the law, which in general displays a “great capacity to tolerate inconsistencies,” should have such a strong “appetite for theory” in the First Amendment area. He then observes:
If my puzzle as to the First Amendment is not a true puzzle, it can only be for the congenial reason that free speech is so close to the heart of democratic organization that if we do not have an appropriate theory for our law here, we feel we really do not understand the society in which we live.
It was in this spirit that he celebrated the Supreme Court’s 1964 decision in New York Times v. Sullivan as a great advance in clarity. In Times the Court, in reversing a libel judgment, made explicit the principle that seditious libel–criticism of government–cannot be made a crime in America and spoke in this connection of “the central meaning of the First Amendment.” HK hailed the decision as perhaps “the best and most important” yet handed down in the First Amendment area and noted with delight that the Court appeared to be endorsing a particular theory of the First Amendment — Alexander Meiklejohn’s thesis that freedom of speech is justified by the requirements of self-government.
HK remains strongly identified with the Times decision and with Meiklejohn; properly so in both instances. Yet ironically this may also mislead by making this fox seem a hedgehog. Although it would be hard to overstate the importance he attached to the seditious libel point—it was a touchstone to which he often returned—he did not see “the central meaning of the First Amendment” as its only meaning. Indeed, his response to those words was, characteristically, as much literary as analytic: he found it striking the Court would use such language. And while he saw the Meiklejohn thesis as a major contribution—and was bound to the man by the deepest affection—he did not share Meiklejohn’s insistence on a unified theory grounded on a single rationale.
The fact is that HK was highly skeptical about the quest for a general theory. The same year he wrote his article on New York Times he gave an exam in his First Amendment course in which he invited students to write “a reflective essay” on the following theme:
It is a mistake to pursue a unitary theory of freedom of speech under the United States Constitution. There are irreducible differences in the situations the Court is called upon to review and no legal principle can accommodate them all. The most we can aspire to is not a theory but specific solutions to a congeries of speech situations. This after all has been the genius of the Common Law.
HK, it is important to recall, taught torts throughout his career. The sensibility he brought to constitutional law was steeped in the culture of the common law. Distrustful of theory, he had great faith in the common law process. He valued its attention to particulars, its tolerance for inconsistencies, its capacity for growth and self-correction. These qualities are evoked by a favorite metaphor to which he frequently recurs: the image of “the law working itself pure.” What drew him to First Amendment law was of a piece with what drew him to torts. The constitutional law on freedom of speech, he observed in class, is “a really great example of the common law process at work in a single jurisdiction—judge-made law, inch by inch, case by case.”
HK was not anxious to generalize. He was concerned that the search for a unifying principle, if pursued with too much single-minded intensity, would blunt rather than deepen perception. He wanted to stay close to the ground of experience. In 1971 he told his students:
On my current view, one should seek not so much an organizing principle to answer all speech issues as an organizing map on which to place the problems. They are difficult to conceptualize and to relate to each other, depending in large part on the sociological feel of the situation—genre of the problem.
His central methodological commitment is to pay close attention to the particularity of different First Amendment problems. In this respect, his approach follows from his view of the nature of the Court’s achievement. The Court may not have harmonized its answers to various questions, but it has, in his view, at its best, worked with patience and skill to discern the criteria appropriate to particular problems. Its achievement, as he sees it, resides in this close analysis of the particulars, whatever the cost in overall coherence. In a sense, he celebrates what others deplore. “In confusion and lack of overall formula,” he told his students, “I see strength.”
HK’s emphasis on the particularity of First Amendment problems, his insstence on close attention to the contours of the given issue, his resistance to generalizations that flatten differences and collapse incommensurate phenomena into common categories — these features of his approach do not reflect a lack of interest in the larger question of what this body of experience, taken as a whole, amounts to. On the contrary, one of the striking things about his approach is how it combines this narrow focus on the precise character of particular problems with a broad perspective on what we are doing as a society when we engage in First Amendment controversies.
At the center of his approach is the concept of tradition. He conceived of the American experience under the First Amendment as something more than a body of legal precedent; he saw it as a tradition of the society. He seems to have found in this concept the sense of coherence, the sense of being securely grounded that others seek in theory. It offered him a way of talking in general terms without generalizing — without, that is, being reductive of rich experiences without blunting the particulars.
The concept is at once central and elusive, foundational and sketchy. What does HK mean when he speaks of “tradition” in connection with the First Amendment? In an article, written while he was working on this book, he brooded on the general theme of “tradition in law.” After discussing several relatively obvious instances of tradition—the use of precedent and various practices of the profession—he turned to “the difficult sense in which precedent and, in a way, practices embody values that transcend technical limits, an aspect perhaps associated most often with constitutional law.” There are, he wrote, “areas of law where the precedents taken as a whole, rather than in logical, precise, vertical sequences, carry a compulsion and inspiration that goes beyond literal holdings.”
As an example, he quoted Justice Frankfurter on the constitutional requirement of “due process.” HK was not a great admirer of Frankfurter’s work as a judge and, as this book makes clear, found him peculiarly insensitive to First Amendment values. Yet in his view it was Frankfurter who “best articulated the sense in which legal tradition can transmit a concept or norm that transcends precedent.” The occasion was Joint Anti-Fascist Refugee Committee v. McGrath, a 1951 case involving the Attorney General’s list of subversive organizations:
The requirement of “due process” is not a fair-weather or timid assurance. It must be respected in periods of calm and in times of trouble; it protects aliens as well as citizens. But “due process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Expressing as it does in its ultimate analysis respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization, “due process” cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, “due process” is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess.
What is the role of the Court in relation to such a tradition? HK sharply disagreed with the view expressed in an earlier era by, among others, James Bradley Thayer—and echoed today by some who would constrict the role of the courts in American life—that constitutional values such as those embodied in the First Amendment are for the most part judicially unenforceable and must rely for their protection on the traditions of the society. One of his notes reads:
The Court and the tradition. Thayer is only 1/2 right. True, Ct. cannot single handedly save or keep liberal and tolerant a people. But a tradition can, and the role of the Court is to steadily enrich and nourish that tradition.
Judges do not create such a tradition–it resides ultimately in the society–but they do play a key role in articulating it, clarifying it, freshening it. It was in this spirit that HK, borrowing from Karl Llewellyn, saluted the judges who over time have given “living body, toughness, and inspiration” to “what is now for me the worthiest tradition in American law, the tradition of freedom of speech, press, and political action.”
HK’s view of the Court’s work in this area as the elaboration of a tradition had important implications for how he conceived and executed this book. If it is a tradition we are talking about and not simply a body of law, then the requirements of exposition are somewhat different: a matter of evocation as well as analysis, of narrative as well as logic. The objective is not simply to restate the most current answers to the issues the Court has encountered. It is to give a full account of the dialogue out of which they have emerged. In order to grasp the moral, one needs to know the story.
In this respect, HK’s thinking about tradition was influenced by T.S. Eliot’s essay “Tradition and the Individual Talent.” (I know this, in part, because he directed me to it when I began to write.) Eliot advises the apprentice poet to discipline his talent by steeping himself in the tradition of English poetry and thereby to develop “the historical sense”—“a perception, not only of the pastness of the past, but of its presence.” HK sees the requirements of the First Amendment tradition in similar terms: “We need, in Learned Hand’s splendid phrase, to have a sense of our ‘hardbought acquisition in the fight for freedom.’”
Perhaps the most important implication of HK’s orientation is that from the perspective of tradition, everything in the Court’s First Amendment oeuvre is alive and available, regardless of its current status as precedent. New precedents may supersede old, but they do not erase the ideas and language and experience the latter contain. In the realm of tradition insights and arguments, once uttered, are indelible. As Eliot said of literary tradition, this is “a development which abandons nothing en route.” Or to put it another way, HK distinguishes between precedent and intellectual history and emphasizes the latter.
His vision of the tradition is manifest in his style of approach. Virtually any First Amendment case is for him a potential source of rich narrative resources. And of language: he is always listening for the living voices of the tradition. He quotes extensively and makes generous use of italics in an effort to make those voices immediate—to bring them back alive. Foraging through the history, he encounters cases, whatever their precedential value, with the same energy of response—the same firsthandedness and density of perception—that he brought to controversies of the moment. In spirit, if not invariably in fact, he always writes in the present tense.
“A living tradition,” Alasdair MacIntyre has observed, “is an historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition.” HK’s understanding of tradition is similar. He offers specific arguments as to what the content of the First Amendment tradition is or should be; above all, he sees rejection of the crime of seditious libel as essential. Yet his use of “tradition” does not reduce down (as is so often the case with this word) to a rhetorical device in the service of his own views. His essay is informed by a larger vision of the tradition-as-argument. As I understand it, he sees the essence of the tradition as residing not in one or another set of contending views but in the controversy itself. It is a matter of regarding these questions as central, of taking them seriously, of bringing to them a certain quality of attention.
He is thus disposed to see First Amendment controversies not only as inevitable but also (in most, though not all, instances) as desirable—to see them as evidence of the vitality of the tradition and as a means of maintaining that vitality. Altogether apart from resolution of the point at issue, such controversies serve a range of functions. By dramatizing the tradition, they serve as vehicles for its transmission. They often provide extended occasions for that “counterspeech” which classic First Amendment doctrine prescribes as the appropriate remedy for evil speech short of outright incitement to criminal action. (An irony: the counterspeech promoted by free speech doctrine as the alternative to censorship is frequently cast in the form of arguments for censorship.) Perhaps most important, they are occasions for renewing our understanding of the norm, for articulating it anew. Unwarranted censorship is not the only threat to freedom of speech. There is also the danger that a doctrinaire orthodoxy will harden around the norm. The intensity of the dialogue insures critical discussion of this principle designed to foster critical discussion. The principle is exemplified by the practice.
“To gain insight” into a First Amendment problem, HK advised his students, “it is necessary to have sympathy for the grievance against speech.” One must “honor the countervalues.” Such sympathy is an avenue to understanding the problem. It is also rhetorically effective: a demonstration to the aggrieved that their argument has been heard. And it is an antidote to the common tendency to argue against censorship on the ground that speech does not have any real impact on the world. One of HK’s notes reads:
Speech has a price. It is a liberal weakness to discount so heavily the price. It is not always a “witchhunt,” it is not always correct to win by showing danger has been exaggerated.
To be sure, the danger often is exaggerated; this is a common pattern. Rejoinder in these terms is thus often called for. Employed reflexively and thoughtlessly, however, this argument is self-defeating—a defense of the First Amendment that weakens it. For it rests on the unstated premise that speech is to be protected so long as it does not really matter. HK called this the “luxury civil liberty” view of the First Amendment and saw it as a major vulnerability in the tradition—a premise that can be turned against speech when the need for protection is greatest.
The high value HK places on the continual testing of the norm by experience is given engaging expression in one of his notes. It begins as a set of critical observations about the absolute reading of the First Amendment advanced by Justice Black. Although a great admirer of Black, HK had little enthusiasm for this argument and saw the debate it provoked as distracting and fruitless. He characterizes Black’s absolutism as “a sad flaw, amidst so much gallantry.” He can see “no reason why all use of words per se should be 100% immune.” Moreover, he thinks the absolutist stance rhetorically weak: if the First Amendment position is that all use of words is protected, then the “debate is won by showing any instance where speech can be regulated.” This sequence of reflections delivers him to a concentrated statement of his own view:
Finally, my personal view is that speech is “almost an absolute” – that is, it is highly unlikely in any instance that the argument v. regulation will win but that this is not an a priori conclusion known in advance of the concrete challenge but a result to be won by sweat in the individual case, time after time!
How much hangs on that “almost”! If you believe freedom of speech an absolute, you can state your position in a sentence. Believing it “almost an absolute,” HK was moved to write this book; and, had he lived, he would have written much more. For, as he sees it, the dialogue between the society and the Court over the meaning of freedom of speech is not simply a succession of occasions for declaring an absolute. Nor is it only a means to the end of a general theory. It is, above all, an end in itself: a discipline of freedom, the ongoing work of a free society.
A similar conception of freedom was beautifully expressed by Ramsey Clark in a memorial tribute to HK. He said HK was “a free man” because “he questioned most severely the things he loved best.” Over the years I have thought a good deal about that remark—have thought about it, in part, from the perspective of one of the things he loved. It is not easy to characterize the tenor of his questioning. The word “severely” is not quite right. It does not convey the play of his mind. Also, there was an unconditional quality about his loyalty to the individuals and institutions he cared about. What is hard to convey is how his questioning did not threaten but was in the service of his love: the relationship between his endless questions and his underlying faith. Question followed question as easily as breath followed breath.
The least doctrinaire of men, HK embodied a relationship to the world—reflected in his writing style, his manner of teaching, and the very rhythms of his thought—that might best be described as conversational. Talk of “dialogue” and references to Socrates do not capture its flavor—the warmth and wit, the play of intelligence, the impulse to connect. One might say of him what he once said of his friend Meiklejohn: “I have always suspected that Socrates, however wise and admirable, would have made a trying and difficult companion. Alec was a Socrates who wore well, a Socrates it was fun to be with, a Socrates for all seasons.”
HK’s conversational style—the way he entertained a question—was to remain poised amid competing impulses and perspectives, holding them in productive tension: taut strings that gave out his distinctive notes and chords, his singular resonances. This style of mind was well suited to the subject of the Supreme Court. The fit was especially good with the Warren Court: the tensions in him corresponded to those among the justices. For some, a Court composed exclusively of Harlans might be the ideal; for others, a Court composed of Blacks; for some, a Court of Frankfurters; for others, a Court of Douglases. But what HK valued was the mix and the resulting interplay: the way the tensions on the Court served to deepen understanding of the issues it was called upon to decide.
He was attentive as well to the tensions within individual judges. He once defined law as “disciplined passion”—with equal emphasis on both words. This sense of the law, at its best, as a demanding interaction between qualities of heart and mind strongly colored the lens through which he viewed the work of particular judges. He was fascinated by what he called “judicial style”—the mix of qualities peculiar to a judge’s work—and a number of striking profiles emerge in the pages of this book. (Among them: Holmes, Jackson, Frankfurter, Harlan, Black, Brennan.) Indeed, the question at the center of the book—what is freedom of speech?—is shadowed by another: what makes a good judge, and more specifically, a good First Amendment judge?
There is no single answer, no single model. No one has a monopoly on insight; and, as HK puts it in a note, “everyone has a good day once in a while.” The performances of individual justices over time and in response to diverse issues are uneven: “judicial profiles are mixed.” The range of issues arising under the First Amendment is so broad and varied that it is inevitable an individual judge will respond more fully and sensitively to some than to others. Everyone’s vision is partial. The tradition is the work of many hands.
For all his delight in the play of competing views, HK never lost sight of the fundamental character of adjudication: judges must decide. The conversation cannot remain forever in play. The dialogue must yield a judgment. And that judgment ultimately carries the coercive power of the state. Adjudication is not an exercise in pure criticism; it is not a free, unrestrained inquiry. It is a complex process, subject to political pressures and institutional constraints, removed from the realm of abstract discourse by the necessity of decision and the consequences of decision.
“The rest of us are fortunate indeed,” HK once wrote of legal scholars, “that our job is so much easier and less responsible.” “He never lost his awe at the enormity of the justices’ task nor his awareness of the weight of responsibility under which they act. His writing bears no trace of the subtle condescension—the archness—that colors much academic commentary on the Court. (A corollary: his anger, when he is so moved, has unimpeded fluency and force.)
Expressions of his temperament, the generosity and sympathy that animate his approach are also aspects of a demanding critical method. Central to that method is a reluctance to regard factors extrinsic to legal reasoning as sufficient explanations of the Court’s decisions. A note reads:
The limits of realpolitik. Undoubtedly other factors also explain: cold war, balance in public criticism of the Ct, judicial personalities—but they do not deny rational content of problems; there is always this dimension.
HK acknowledges the force of the realist’s critique, but he resists the conclusion that adjudication reduces down to that alone—that it is all at bottom a matter of politics and personalities. His orientation—the discipline he imposes upon himself—is to note such factors but for the most part to eschew relying on their explanatory power and to pursue instead the possibilities of intellectual analysis of the Court’s work. He readily acknowledges that it is possible to exaggerate the role played by the compulsions of legal reasoning. Yet he is prepared to run that risk—to err in that direction—in the belief that such an approach is more likely to yield insight than the alternatives.
That is not to say that he is oblivious to extrinsic factors or that he excludes them from consideration. On the contrary, in his view, it is precisely the “interplay of public reason and ‘real’ reason” in the process of adjudication that “accounts for much of the fascination of law study.” But he will leave it to others to seize upon the presence of extrinsic factors as evidence that the process of adjudication is compromised. He is more interested in discerning how such factors may press the Court to constitutional insight and doctrinal innovation. As he sees it, the presence of extrinsic factors does not in itself impeach the integrity of the institution; rather, it defines the strenuous, problematic nature of its task.
HK writes from a perspective I have come to think of as that of the tenth justice. By this I do not mean to suggest qualities of self-importance but of collegiality—his passionate identification with the institution of the Court and his feel for the logic of evolving doctrine, for the problems it presents and the possibilities it holds. He does not hold himself above and apart; he does not engage in the sorts of criticism that are only possible because one is not in a position of responsibility. Confronted with a Supreme Court decision, his basic critical impulse is to re-adjudicate the case—to encounter anew the controversy it presents, to reconsider the alternatives open to the Court, to seek out the best available avenue for meeting the necessity of decision and advancing the development of the law.
He is interested in the full range of judicial tactics. Eloquence really matters here, he once observed; this tradition of protecting words lives by words. Much of the eloquence that has come to be invested in the tradition was first uttered in dissent. A dissenting opinion can be read as an essay by the individual justice. It is a form that allows for the full force of a singular voice and for the clear statement of a normative position. Indeed, there was a time when the widely held impression of a strong free speech tradition in American law rested almost entirely on the dissenting opinions of Holmes and Brandeis rather than on the decisions from which they dissented. It may well be, HK speculates that one reason the tradition grew so strong was that it was able to mature in dissent relieved of the need to make accommodations in order to gain a majority.
It is easy to see an eloquent dissenting opinion as part of a grand public dialogue about the meaning of freedom of speech. Yet perhaps the strongest strain in this essay is HK’s close attention to the quiet, non-eloquent exercise of judicial craftsmanship in the construction of majority opinions. He is often moved to celebrate the contributions of what he calls “judicial statesmanship”: the tactical deftness that seeks, while honoring institutional constraints and navigating political cross-currents, to meet the need for decision in the particular case and to advance the development of the law.
It is not easy to fix the contributions of the judicial statesman with precision. If he has been successful in locating common ground and marshalling a majority upon it, he speaks for the institution of the Court, and his opinion is likely to be shaped (or misshaped) by the compromises and bargains, the concessions and tact required to build and maintain a majority. Such an opinion may represent a considerable intellectual achievement, but it is an achievement unlikely to declare itself in the form of surface brilliance or full-throated eloquence. The contributions of the judicial statesman are more likely to be discernible in the themes that shape the emerging law over time.
At this point the image of the dialogue between the society and the Court over the meaning of freedom of speech complicates. For the judicial statesman’s moves can seem obscure and evasive. Concerned to protect the institution of the Court while responding to the claims of the parties in the particular controversy, he will often seek to avoid direct confrontation with the underlying constitutional issue, will dispose of the case on lesser grounds — will, to use a favorite HK word, “finesse” the situation. When he does address the underlying constitutional issue, he may do so obliquely rather than directly—by reorchestrating old precedents to yield new meanings, by rewriting but not openly repudiating disfavored precedents, by advancing via statutory construction toward a new constitutional formulation. As legal doctrine evolves under his hand, the argument tends to be muted and in extreme instances antithetical propositions are portrayed as cohering.
We touch here upon a central tension in HK’s thought: a tension between his vision of the tradition-as-argument and his appreciation—and appetite—for the subtleties of judicial statesmanship. He does not frame this tension explicitly; nor does he address it directly. Yet there is a sense in which his distinctive role as a legal scholar arises out of it: he seeks to resolve the tension in narrative—to embed the fragile stratagems of the judicial statesman in an account that will give them weight and resonance. Amid obscurity, compromise and apparent contradiction, he delights in tracing the golden thread of “the law working itself pure.”
HK’s admiration for judicial statesmanship, though large, is not, however, boundless. He accepts that there are times when the Court’s stewardship of the First Amendment may properly involve the avoidance of constitutional confrontation, the diplomatic correction of the particular injustice by means that do not reach the underlying issue, and the building of doctrinal bridges through strained readings of prior precedent. The question is: when are those times? Everything turns on an assessment of the expanding and contracting spheres of possible action, now and in the future. HK often notes the costs of misassessment: Diplomatic resolutions may prove short-lived—the problem soon returns. By obscuring what it is doing from the public, the Court may waste important educational opportunities. And the concessions the statesman makes in the course of building his doctrinal edifices may ultimately undo his work: it is possible to travel both ways on a bridge.
One product of judicial statesmanship about which HK had little ambivalence was what he called “the technical preferred position”: various technical doctrines the Court has developed—and often used to avoid direct constitutional confrontation—in First Amendment cases. In other areas regulation may be accorded a certain latitude in order to insure it hits the evil at which it is aimed. By contrast, a strong—though by no means uncontested—strand of the First Amendment tradition insists that the boundaries of protected expression be drawn with the utmost clarity and precision: it demands that regulations in the speech domain hit their targets directly. Similarly, it has little patience with unnecessary burdens, no matter how small, on the exercise of First Amendment freedoms, and is willing to intervene on the basis of anticipated harm to those freedoms rather than waiting for the harm to mature.
In HK’s view, the principle underlying these technical doctrines is that, while speech may be subject to censorship, any waste of First Amendment freedoms in the process will not be tolerated. This principle rests on a perception not only of the value of speech but also of its perishability—an awareness of how hard it can be to speak, how easy to keep silent. The Court has been alert to the dangers of self-censorship—a regulation may offend not because it directly censors speech but because it has features that may prompt citizens to censor themselves—and it has often spoken of “the breathing space” required by First Amendment freedoms.
The term “preferred position” figured prominently in debate during the 1940s over whether the First Amendment enjoyed preeminence in the hierarchy of constitutional values. The argument was that because of the great importance of First Amendment freedoms, legislation touching on speech should face a presumption of unconstitutionality. It is my impression that HK saw this as too sweeping an argument, too blunt an instrument. His use of the term “technical preferred position” thus carries the implication that the First Amendment is best served not by broad generalizations about its preeminence but by a set of habits and standards that insure we take care in our pursuit of answers to the question it poses.
In a way, these technical standards are the counterpart to HK’s insistence on being open to the full force of the argument for censorship, on cultivating “sympathy for the grievance” against speech. Both contribute to the rigor and intensity of the dialogue. When the Court employs these doctrines, it does not foreclose the possibility of censorship, but it does challenge the government to define the scope of censorship in terms sufficiently clear and narrow to be consistent with the great value we place on First Amendment freedoms. In this respect, it more than ever resembles Socrates—turning an assertion back at an interlocutor in the form of a question.
This book is not complete. HK did not finish his grand design. There are isolated gaps, and a projected third section on non-content regulation remains unwritten. Yet there is a sense in which the map of the field that emerges is more revealing than an exhaustive survey of every First Amendment issue to reach the Court would have been. HK wrote first about the issues that mattered most to him. The shape of the book thus reflects what commanded his attention when he surveyed the full sweep of the American experience under the First Amendment.
Part One is devoted to regulation of the content of speech. It opens with a chapter on “the consensus” with regard to speech content which, it is generally agreed, should be beyond the reach of the law. HK thought it important to establish at the outset that there are elements of the tradition that are, so to speak, invisible, because they have so rarely given rise to litigation. Having made this point in its opening pages, he devotes the balance of the book to mapping contested terrain—areas where there has been ongoing controversy over whether or not speech is constitutionally protected. He first considers several “minor jurisdictions of censorship”: contempt by publication, obscenity, libel. He groups these issues together in part to make a point about how different they are—no single analytic device, no single test or standard, is equal to such diversity. He then turns to the “major jurisdictions of censorship”—areas where the grievance against speech is that it is the cause of illegal action. There are two basic forms of the problem: speech that provokes others to disorder in retaliation against the speaker and speech that incites others to illegal action against a target selected by the speaker. The chapters on “reflexive disorder” deal with the former; those on “subversive advocacy” with the latter.
The discussion of the problem of subversive advocacy—that is, the issue posed by the advocacy of violence and lawlessness as political tactics—dominates Part One. HK characterizes this as “the core issue.” Analytically, it goes to the heart of the First Amendment: the call to criminal action is typically part of a larger political critique; hence to set the boundaries of permissible advocacy is also to delineate the point beyond which political criticism may constitutionally be suppressed. Historically, this issue precipitated the birth of the legal tradition and has occasioned a series of cases, from World War I to the present, which provide rich materials for understanding the dynamics of dissent in a free society.
The architecture of this section explicitly dramatizes what HK is doing in the book as a whole. He “starts at the end of the story,” with the Court’s most recent statement of the constitutional boundaries of permissible advocacy, Brandenburg v. Ohio in 1969, a particularly opaque exercise in judicial statesmanship. Then he returns to the earliest cases and embarks on a continuous account from the World War I period through the collapse of First Amendment protections during the 1950s to the efforts of the Court in recent decades to recover the ground surrendered by various anti-Communist decisions. When, in conclusion, he revisits Brandenburg, the opinion is resonant with meaning conferred by the narrative context he has created around it.
Part Two deals with freedom of association. The great majority of the cases covered arise out of the anti-Communist experience. The threat of domestic Communism, as perceived, posed a novel set of problems for American law. The concern had less to do with the content of Communist speech, though the issue was often framed that way, than with the threat of group action and attendant questions about the loyalty and reliability of individual members. HK traces the law’s response to these perceived threats. He begins with the strategies by which the government has sought to impose sanctions directly on groups. Then he turns to the wide assortment of noncriminal sanctions imposed on individuals as members of groups. These take two basic forms: the denial of a privilege or benefit of some sort (e.g., a public job, a passport, a tax exemption, etc.); and official inquiry into the individual’s political views and affiliations. In both instances the government typically argues that the regulation is not intended as a sanction but rather that the negative impact on speech and association is an unintended by-product of the pursuit of some other legitimate government objective. The overarching question for the law is whether, in view of the noncriminal nature of the sanction and the ambiguity of the state objective, the constitutional standards governing the use of criminal sanctions should apply.
It is striking that HK—his emphasis on the diversity of First Amendment issues notwithstanding—ended up writing a book so centrally concerned with freedom of association. His allocation of effort testifies to the importance these issues had for him and to his belief that we have not yet fully come to terms with them. The law—and the tradition—have found it easier to protect the isolated individual speaker than to protect the association of those who join together to achieve political ends. The latter has been harder to conceptualize; it has more sharply tested political tolerance; and it has posed issues at once basic and unresolved.
Much has happened in the years since HK’s death. There have been changes in the composition of the Court and in the mood of the country; there have been marked changes in other areas of constitutional law. Yet the discussion of subversive advocacy and freedom of association that occupies the bulk of the book remains remarkably current. For whatever reasons, there has been surprisingly little Supreme Court activity bearing on this constellation of issues in recent years. Were HK writing today, his tone and distribution of emphasis would no doubt be different. Nonetheless this book, written more than a decade ago, remains an essentially up-to-date account of the body of precedent on advocacy and association that the present Court inherited and has as yet had little occasion to revise.
Although the issues that dominate the book have been dormant in recent years, the Court’s First Amendment docket has remained full. In the “minor jurisdictions”—contempt by publication, obscenity, libel—there have been significant developments. We nonetheless felt it important to include these chapters. This is a personal essay: the effort of a singular mind to evoke the First Amendment tradition. Its overall design—HK’s sense of the geography of the field—is an integral part of that effort. Moreover, the “minor jurisdictions” chapters introduce certain general themes that will resonate through the essay.
Centrally concerned with the 1950s and 1960s, written in the 1970s, and now published in the 1980s, this book interacts with its times in ways HK could not have anticipated. Death fixed his perspective. That limits the book but also gives it a special quality. At this distance in time it is perhaps easier to see the nature of his interaction with the cases, to see the surviving residue of the “disciplined passion” he brought to bear upon them, to see that in “documenting” the tradition he was also in a very real sense engaged in creating it.
Read today, his essay makes immediate questions about the relationship between law and tradition that only the future can answer. One cannot but be struck by an impression of disparity between the weight of the body of experience his intense retelling of the cases evokes and the fragility of the expressions that experience has found in law. Some of the achievements of judicial statesmanship he celebrates are vulnerable to being undone by the same means—the same rewriting and reorchestration of precedents—that were used to achieve them. There is nothing in law to prevent a Court that is so disposed from reviving the precedents they were designed to neutralize. Yet they do not exist in law alone; they also exist in the medium of tradition. Ironically, their vulnerability as precedent heightens one’s awareness of the sturdiness of the tradition. It would be false to the spirit of this book to suggest that precedent does not matter. (HK: “We don’t want victories that are too easy or doctrinaire, but we do want victories.”) Yet it is also clear that the tradition does not reduce down to the precedents of the moment. Its authority resides elsewhere; its vitality issues from multiple sources. Changes in the law will not in themselves diminish its power to embolden citizens to speak their minds.
The judicial statesman works at the edge of a future he does not know. So does the writer. Reading HK’s essay today, we know something of the future into which he spoke. In some respects the passage of time has undermined his words; in others it has conferred power upon them; and it has sharpened his questions about the relationship of law and tradition. Happily, it has also deepened the sense in which this book about tradition embodies tradition. That which survives is sustaining: the companionship of his lively, passionate, interested voice speaking to us, out of the past, in the present tense.