A Worthy Tradition – Editor’s Afterword
My father’s study was at the top of the stairs. It was an unusual study. A large room with French doors and many windows, it had been used by earlier occupants of the house as a ballroom. Although it contained much furniture—a desk, two sofas, filing cabinets, a long table, assorted chairs, end tables, lamps—one’s dominant impression was of space and light. His typewriter sat on a small table in the middle of the room.
Bookshelves lined the walls interrupted here and there by photographs: my mother at nineteen; the children; a studio portrait of his father with a grandchild on his knee. On another wall, near the desk, were portraits of two teachers with whom he had become a colleague—Malcolm Sharp and Charles Gregory. A color snapshot, carefully framed, held the faded image of him and Alexander Meiklejohn, erect and alert at ninety-one, walking arm in arm down a green lane.
The size of the room allowed him the luxury of a horizontal filing system. (The filing cabinets were all but empty.) Piles of paper covered the floor. Manuscripts and notes. Briefs and reprints. Newspaper clippings on various topics: the King assassination, the moon landing, Churchill’s funeral, the appointment of Edward Levi as President of the University of Chicago, Watergate, the retirement of Willie Mays. Piles of correspondence, answered and unanswered. Student exams and papers, graded and ungraded.
There was an underlying order to all this paper, but its basis was not immediately apparent. Always moving on to the next project, he rarely winnowed through the material generated by the last. The paper in that room thus constituted, layer upon layer, a sort of geology of his career. The deepest substrata included the journal he kept during his first year in college, papers he wrote as an undergraduate, exams he took in law school.
Evidence of his passion for the First Amendment was embedded in every strata. Throughout his career, whatever his primary professional involvement at the moment, he never failed to respond to the claims of the First Amendment, to its “charisma.” His work in the field was thus the product of a series of passionate engagements rather than of a carefully plotted campaign. Yet it was also the work of a man who carried in his mind from the start a vision of the book on freedom of speech he “always wanted to write.”
All around him, on the day he died, were materials pertaining to that book. The manuscript in a series of binders. Notes in folders and piles. Relevant books and articles, his own and those of others. Thick volumes of US. Reports—a complete set from 1919 to 1974—dominated a large bookshelf. On his desk a paperback copy of The Negro and the First Amendment, a book he had written a decade earlier, lay open to the discussion of the case NAACP v. Button.
When he was alive and at work, what we referred to as “the book” was the manuscript plus the contents of his mind—a mind immersed in its subject and absorbed in the process of composition. That mind animated and enlarged the essay. It filled the manuscript with promise and possibility, gave body to sketchy fragments and force to cryptic margin notes. When it was stilled, “the book” contracted down to the words on the page. Standing alone—left behind—the manuscript seemed, in the afterglow of his life, at once an emblem of loss and a repository of hope.
This must be a common occurrence. A scholar or writer who is productive until the end will almost inevitably leave work-in-progress. Yet there is no established procedure, no readily accessible body of shared experience to guide one in handling this situation. There are too many variables; one cannot generalize. A great deal turns on the precise condition of the particular manuscript.
HK wrote as he talked: in an unforced, unrestrained flow of language. His general practice was to rewrite relatively little; one does not find among his papers numerous drafts of various articles. His conversational ease, his tolerance of the proximate, his readiness to risk error and overstatement in pursuit of fresh perceptions—these were closely allied to his originality. His style was a loosely woven net for catching large truths. He did not aspire to be definitive. His trust of first utterance was grounded on the knowledge that one could always say more. This was a feature of his conversation often recalled by friends: just as one was about to take one’s leave, he would say, “One more thing,” and be off on a new tangent. The point is not that he was verbose; one never tired of talking with him. It is rather that his impulse was always to add to what had been said—to enlarge upon it, to qualify it, to locate the questions inside assertions.
These qualities play through his manuscript. It is literally a first draft. I would be surprised if he crumpled up and discarded more than half a dozen sheets of paper in the course of producing it. Initially the writing was uncharacteristically halting and uncertain. He seemed cramped by threshold questions of form. In view of the scale and diversity of the field, the task he had set himself—to encompass the entire tradition in a single essay—required strategies of compression and summary; it required a sure sense of literary architecture. HK’s great gift, by contrast, was his rich, seemingly inexhaustible capacity for response. So much of his writing, so much of his best writing, was produced in headlong response to a decision just handed down, to a controversy of the moment. The mismatch between his gifts and his chosen task recalls the character in Proust—a writer he adored—who is said to have had the misfortune to fall in love with a woman who was not his type.
At first HK tried to maintain a strict sense of form. (For example, he initially conceived of each “minor jurisdiction” chapter as centering on a single paradigmatic case.) But soon he reverted to the style of approach most congenial to him. He surrendered to his fascination with the material, tackling the cases, one by one, as if they had just been handed down. He thus exercised to the utmost the freedom a first draft affords.
Yet the resulting manuscript is, in two respects, a most unusual first draft. First, there are the marginalia. Each summer, while on vacation, he would reread the manuscript—“amidst swans, rabbits, and egrets”—and sketch his reactions in the margins. There are roughly six hundred margin notes scattered through the manuscript. They range from question marks to full pages of commentary on the backside of manuscript pages. Most suggest revisions and additions; some raise difficult substantive questions. Taken together, they testify to his intention to extensively rework the manuscript. Indeed, there are chapters in which more analytic perceptions reside in the margins than in the text.
The second distinguishing feature of the manuscript is its relationship to HK’s published work and his teaching. This may have been a first draft, but it was also the culmination of decades of teaching and writing about First Amendment issues. The manuscript was thus surrounded by much relevant material. There were scores of articles and reviews. There were masses of notes: eight hundred pages of handwritten notes outlining the salient points in some three hundred First Amendment cases; four hundred pages of random notes—quickly sketched perceptions, questions, hunches. Most important, there were his lecture notes for the course on the First Amendment he taught throughout his career. These, in turn, generated yet another category of notes: those of his students. After his death, I solicited several sets of notes from students in the 1974 course and prepared a composite account of the substance of the classes. This resource was especially helpful, for there was a close kinship between the essay and the course. “The book will be like the course would be,” HK once remarked to a student, “if I was coherent all the time.”
These outside resources created a context for evaluating the manuscript and for making editorial decisions. They were especially valuable because of the unity and continuity of HK’s thought over time. Although his writing and his teaching always had a fresh, firsthand quality, he did not in the course of his career change his mind much about these matters. His thinking deepened and advanced, but there were no sharp breaks or turns.
The condition of the manuscript thus necessitated editorial intervention and at the same time gave reason to hope it would be possible. The loosely woven first draft texture, the marginalia, the context created by HK’s other work—these nourished the hope that the process of composition, arrested by death, might somehow be advanced.
The aim was to carry on: to make available to readers, insofar as possible, the book HK would have given them, had he lived. This was hardly a matter of picking up where he left off. Our relationship to the manuscript was very different from his. Words he put down with such a light touch took on, after his death, resistant weight. For him, they were part of an ongoing flow that would be augmented and modified by what came after. For us, they were his last words. Under his hand, the manuscript was full of movement, a work-in-progress; for us, it was a vast, intricate puzzle. He had inhabited it; we were on the outside looking in.
To have read the manuscript—even with the intensity and heightened lucidity of grief—was hardly to have entered it. Yet certain broad problems were immediately apparent. There were structural difficulties he had identified but not resolved. There were internal gaps. The texture of the writing was uneven; some chapters were fully realized, others only lightly sketched. And there were the marginal notes—scattered clues holding out the promise that there might be a way back toward HK’s mind.
At the threshold, I formulated broad editorial guidelines. Beyond editing for clarity and style, I would, where possible and desirable, act on his marginal ‘‘instructions.’’ I would not, however, attempt to “complete” the essay. A substantial part of HK’s overall design remained unwritten. There was to have been a section on prior restraint and a large section on non-content regulation. (The latter was to have included chapters on regulation of the public forum keyed to the time, place, and manner of expression; regulation of symbolic conduct; regulation of voting and political activity; regulation of the business of communication; the newsman’s privilege; the issue of access and other special problems of broadcasting.) The absence of these chapters did not affect the existing manuscript. Hence we simply reconceived the shape of the book not to include them.
We were also, at the outset, intensely concerned about the impact of the passage of time. Would cases handed down after HK’s death drain the essay of interest and timeliness? It was clear that some updating would be required—there were instances in which the essay was dated as of the time of his death. But would it be necessary—would it be appropriate—to add discussion of developments since his death? We decided to defer that question, to carry it forward with us.
In general, it was my hope that appropriate editorial criteria would emerge from our interaction with the manuscript. The substance of editorial policy thus took shape slowly, incrementally, page by page; it was the product of countless discrete choices. The form of the effort, by contrast, crystallized at the start; and we sustained it throughout. It had two essential features: (i) I articulated in writing the rationale for all significant changes; and (ii) at every stage, the editorial process was exposed to the critical scrutiny of others—chiefly Professor Owen Fiss of the Yale Law School with whom I have over the years discussed virtually every line in the manuscript. (Early in the project I also had the benefit of a series of conversations about the manuscript with Staughton Lynd.)
The process of editing a chapter had several phases. After preparing a clean, lightly edited draft, I would try to determine what HK’s intentions were beyond the draft. The point of departure for this inquiry was his marginalia. Although time-consuming and laborious, the pursuit of his marginal clues and leads often yielded fruit. We were able to make sense of virtually all the notes and in many instances to execute the revisions they suggested.
We could not, however, assume in every case that a given note was an expression of his intentions. Nor could we assume that the notes, taken together, constituted a full critique of the manuscript, a complete blueprint for revisions. Had we acted on that assumption, it would be a very odd book indeed. It was thus necessary to make an independent critique of the chapter. This was a matter of reading the draft against the relevant cases. Above all, it was a matter of evaluating the manuscript in light of HK’s other writings and notes on the subject—of reading him against himself.
The product of this phase of the process was a memo, often exceeding the length of the chapter, which addressed the problems and possibilities that resided in the draft. Once I had prepared the draft and memo, I discussed them with Owen Fiss. He would read the draft against the original and the memo against the draft. In addition to responding to the points raised in the memo, he would make independent criticisms and suggestions. Finally, I would write a draft, incorporating those revisions and additions that had survived discussion and reflection. I would also write another memo, generally a good deal shorter than the first, which would provide an agenda for further discussion with Owen and a blueprint for another draft of the chapter. Each chapter went through this process at least twice.
Both the memos and my talks with Owen were centrally concerned with issues of editorial license. Editing under normal circumstances is a matter of addressing suggestions and questions to the author. The ultimate responsibility for decision is his. But there was no one to whom we could address our queries except one another. In a sense, we assumed the responsibility of the author but did not claim his freedom. Clarity about the intellectual merits did not resolve the issue of the propriety of editorial intervention. That question was independent. Some of the hardest decisions, absorbing the most time and effort, were decisions not to intervene. For better or worse, nothing reflects the character of this project more than the amount of intellectual effort and moral intensity that went into decisions not to do anything.
The design of the editorial process was initially prompted by concern about the limitations and vulnerabilities I brought to the project as a non-lawyer, apprentice-writer, and son. Over time the forms we adopted proved to serve other important functions as well. Besides opening the editorial process to the scrutiny of others, the draft/memo approach enforced awareness and conscious choice. It enabled us to keep a record of changes made. In a sense, it functioned as a sort of body of law—a way of keeping track of evolving questions. At the same time that it insulated the manuscript from ill-considered interventions, it released me from the sort of self-censorship—the cramping of thought by doubt—I would have suffered, had I implemented changes directly in the manuscript without first developing them in memos. In the memos I could freely explore possibilities and alternative strategies. They also provided a vehicle for my ongoing education. Indeed, that was perhaps their primary purpose early in the project, as I sought my bearings in the field and in my father’s writings.
Similarly, the functions served by my ongoing conversation with Owen proved something other—something more—than originally conceived. His contribution was essential; the project simply would not have been possible without it. I am not now talking about his expertise and judgment; nor about the combination of patience and unyielding standards that make him such a powerful teacher; nor finally about the bracing effect of the utter seriousness he brought to a venture many saw as quixotic. All those things enriched the process and improved the product, but they were not essential. What was essential was how the dynamic between us provided a means of managing the tensions that inhabited the project, a way of playing out those tensions—without being completely stymied by them or seeking to escape them. This is not to suggest that we recreated the tension, the dialectic, between author and editor; nor that one of us was the advocate of intervention, the other of restraint. Those roles shifted back and forth virtually from moment to moment. Indeed, that is the point: it was the conversation that dramatized the competing values implicated in the project—that kept them in play.
Ironically, one of the most important functions of our conversation was to discipline the rich mix of feelings we brought to the project. The emotions that compelled the effort also had power to skew it. We were at once, each in his own way, apprentices seeking to come to terms with HK and the stewards of his last words. The ardor of the apprentice can be a distorting lens. It was our function to be critical, but to do so in the service of the manuscript and not in the service of our own self-definition. The challenge was thus to draw upon powerful emotional currents, not fully understood, yet keep them from overflowing their banks and flooding the manuscript. It may be that the fact that I am the literal and not the symbolic son of the author of this work alerted us from the start to tensions that would have inhabited the project for anyone moved to undertake it. In any case, for us, given the feelings that summoned us to the task, clarity could only be the product of passionate engagement and struggle, never of dispassion.
The editorial policy that emerged over time from this strenuous process cannot be tightly summarized. We proceeded page by page, working through each problem in its turn. Our responses to diverse problems cannot be harmonized into a single general statement. In this respect, the editorial work the manuscript demanded resembles the legal processes it describes: the questions can be framed in general terms, but they can only be answered in particulars.
Yet readers have a right to know something about what was done to the manuscript in the course of preparing it for publication. We considered somehow rendering the editorial presence visible on the page—through the use of brackets, different typefaces, or an elaborate system of footnoting—but decided against it. Such an approach would burden the text; it would defeat one of the chief ends to which the editorial process was directed—the fluent, unimpeded movement of the essay. Also, it would not really meet the need. It would not convey the many changes—some quite sensitive—that take the form of deletions or word changes. Finally, it would be distracting. The editorial process, once entered into, is a fascinating puzzle which might draw the attention of readers away from the substance of the essay.
It has seemed preferable to pursue editorial candor by other means. Copies of the original manuscript have been placed in the Library of Congress and the law libraries of Stanford University, the University of Chicago, and Yale University. The presence of the original in the public domain is intended to allow for informed criticism of the editing and for competing interpretations of the papers we found in HK’s study on the day he died.
This afterword is another means of making known the character of the editorial process. While it is not possible here to give a full record of changes made, I will try to convey something of the flavor of the process through specific examples of different genres of changes. For the most part, I will draw examples from one part of the book—the section on subversive advocacy—in order to lend continuity to the discussion and to suggest how editorial interventions came to interact with one another.
HK conceived of the book as an effort to “map” the Court’s experience under the First Amendment. In order to preserve his sense of the geography of the field, we were conservative about altering the structure of the essay. Thus, for example, we generally maintained his chapter divisions, even when the resulting chapter was only a few pages long and could easily be absorbed into a neighboring chapter. We did not want to obscure points he saw on the intellectual landscape.
This conservatism with respect to structure also prompted us to act contrary to his intentions in one of our first major editorial decisions. Not long before he died, he physically reorganized Part One; that is, he took the bulk of the “minor jurisdictions” section and placed it at the end of Part One, after the discussion of “subversive advocacy.” The rationale for this move appears to have centered on the “libel” chapter and, more specifically, on New York Times v. Sullivan. The general principle associated with Times—rejection of the crime of seditious libel—was a star by which HK navigated, a reference point to which he frequently recurred. Perhaps because of its centrality in his thinking, he was stumped by the question of where to present it. Initially he discussed the general implications of Times in “the consensus” chapter. But on reflection he decided it did not belong there and shifted it to the “libel’’ chapter. A margin note at the end of “the consensus’’ asks: “Q: How handle ‘seditious libel’ now that we’ve excised pp. 37ff for libel chapter?’’ Finally, he shifted the “minor jurisdictions” section as a whole to the end of Part One. A margin note opposite the opening of the final “subversive advocacy” chapter indicated that he did so in order to add “NYT corroborations” and to present a “libel climax.”
On the evidence of this sequence of moves, HK appears to have been weighing several considerations. It seemed necessary to present the seditious libel point early on because of its centrality in his thinking. Yet it would distort the discussion to present such a hard-won principle as an element of “the consensus.” Further, he wanted to discuss the point in the context created by the subversive advocacy narrative.
Because HK did not have an opportunity to rewrite the manuscript, the structural changes he intended had not been realized. He had simply moved the blocks of material around. He had not fashioned new transitions; nor had he reorchestrated internal references. As a result, there were jarring discontinuities between chapters; and the essay recurred to themes and cases that had not yet been introduced. Also, the move had an adverse impact on “the regulation of groups’’ section. Those chapters are continuous with the subversive advocacy discussion—in substance, in style, in analytic texture. The intrusion of “the minor jurisdictions” at that point broke the movement of the essay and resulted in an unnecessarily complex structure.
We decided to restore the original sequence. Because the reorganization went against the grain of the manuscript as written, it would have required a great deal of editorial intervention to realize. Moreover, we had doubts about the merits of the move, even if HK were alive to implement it. Yet this solution did not satisfy. While it served to present the New York Times case early in the essay and to do so in an appropriate context, it frustrated HK’s impulse to discuss the case in connection with the subversive advocacy narrative. As was often the case, we moved on, carrying with us a sense of dissatisfaction. The question remained open.
Happily, in this instance developments elsewhere in the manuscript presented a solution. In the original the final chapter of the “subversive advocacy” section struck us as thin and disappointing. A note at the head of the chapter suggested HK felt the same way: “This needs reworking to catch exact harvest of long journey.” One of the problems was that the essay moved so quickly and abruptly from Yates in 1957 to Brandenburg in 1968 that it left the impression the latter was little more than a footnote to the former. Something was missing: the era between Yates and Brandenburg during which Times and kindred decisions fixed the countervalue involved in subversive advocacy cases and so facilitated the Brandenburg resolution. The interaction of this problem with the unresolved “seditious libel” question yielded a solution to both: place a discussion of the general implications of Times between Yates and Brandenburg. Although HK had not specifically directed that this be done, we were confident it was true to his intentions: it had emerged from the internal logic of his manuscript.
Editing for clarity and style
At the outset I assumed my primary task was to tighten and polish HK’s language, to clear away first draft debris, to remove the sort of scaffolding that gets erected in the course of a first draft. I was only too aware of the sensitivity of what I had undertaken. Yet I did not anticipate just how difficult such routine editorial work would prove. I soon discovered that, under the circumstances of this project, there were no trivial changes.
Under normal circumstances editing at all levels—from copy editing to the deepest rethinking of substance—is an interaction. The editor suggests, the author responds, either accepting or rejecting the suggestion. In many instances the phrasing finally settled on will be neither the author’s original nor the editor’s suggested revision but something that has emerged from the interaction. A good editor will be sensitive to the distinctive qualities of the writer’s style but will also be guided by his own sense of language, of the common language, secure in the knowledge that the author can talk back, that he will reject suggestions that distort his meaning or make his voice alien to his ear.
No such interaction was possible in this case and that generated tensions even at the level of routine copy editing. On one hand, there was the temptation to preserve HK’s characteristic misspellings simply because they were his. It was painful to delete a word he had appropriated and made his own—“stunning,” say, or “gallant”—even if it appeared three times on the same page. Yet to preserve his misspellings and the stylistic equivalents of misspellings would have been an indulgence and a disservice. On the other hand, there was the danger that the cumulative effect of my revisions would be to flatten his distinctive accents, to muffle his voice: the danger that, word by word, I would impose my voice upon his.
The aim from the start has been for the book to speak with single voice and for that voice to be recognizably his. That is not to say that I have attempted to mimic his voice. It is one thing to recognize and seek to preserve the distinctive qualities of a voice, quite another to try to reproduce them. I found I had no alternative but to rely on my own taste and ear. It may have helped that my sense of language was powerfully shaped by his; although by no means the same, there is perhaps a sense in which our styles are kindred.
The essential issue, however, was not a matter of style but of meaning. Early on I entertained a distinction between “literary” and “substantive” dimensions of the project and saw my efforts as addressing the former. That distinction did not survive long; it simply did not exist in practice. Again and again small cracks in the manuscript—an awkward sentence, a congested passage—broadened under scrutiny to disclose difficult substantive questions. Once such a question emerged into view, it had to be engaged. We might decide not to intervene, but we must decide. We could not cease to see the question.
The margin notes
The margin notes vary. Some are emphatic and decisive. Others are tentative and exploratory. A number are just debris; they have already been acted on or have been obviated by other moves. In many instances the location of a note is revealing; in others it only indicates where HK’s hand was when an idea struck. Most of the notes contain explicit instructions:
“Revise to underscore general advocacy insight.”
“Transfer to start of next chapter.”
“Drop to footnote.”
“Add other WWI cases in note to complete coverage.”
“Expand this theme—intro to problem of ‘overlay’ of legal and illegal political conspiracy.”
“Add! Hartzel v. US-322 US (1944)—Esp. Act again like Schenck.”
Some of the notes are charming but non-operational: ‘‘This is a swell chapter.” Some are charming and can be incorporated into the text. For example, beside the discussion of Judge Hand’s restatement in Dennis of the clear and present danger test as “gravity discounted by improbability,” HK wrote, “Suppose wording were reversed! Improbability augmented by gravity!” We preserved this as a footnote.
Then there are notes that are ambitious and provocative—notes that suggest a basic rethinking of a portion of the essay:
Rework. Add oddity of size of speaker as variable when NY Times or CBS counts as one!
Is this simply bequest of Dennis?
Also do more on why answer should be different for group and individual.
$64: Is there a more direct way to put political conspiracy issue?
Whether or not we acted on a note depended on a number of considerations. Some were simply too general—others too cryptic—to implement with any confidence. Yet in many instances a note which standing alone was an insufficient basis for intervention would interact with other notes and with outside materials in such a way that HK’s intentions were illuminated. And then there were instances in which a note, though general, was simply too important not to act on.
Some notes were neither directions nor clearly crystallized perceptions but rather were reminders to himself to think about something. Here is an example of one such note which led us to perceptions we might not otherwise have had. In the original HK concludes a passage critical of Justice Holmes’s example of a man falsely shouting “fire” in a crowded theater with these sentences:
Moreover, because the example is so wholly apolitical, it lacks the requisite complexity for dealing with any serious speech problem likely to confront the legal system. The man shouting “fire” is unique in that he is urging action without offering premises.
This seems an elegant way of making a point that is central to HK’s discussion of subversive advocacy: The problem of incitement arises exclusively in a political context and hence involves a uniquely important countervalue—radical criticism of the society and the government. The revolutionary does not simply shout “revolt”; he offers premises in support of that conclusion, and those premises embody criticism which should be heard. The essential problem confronting the legal system is thus to protect the premises of the revolutionary, while curbing his conclusion as it approaches the threshold of action. The “fire” example betrays Holmes’s insensitivity to the nature of the problem. It is inapt.
Why, then, did HK write “watch this” in the margin beside the second of the sentences quoted? Prompted by his note to stare at that sentence for a while, one realizes that “fire” is the premise and that it is the conclusion “run for your lives” that is unspoken. This may be a small point; in context HK’s meaning is clear and most readers would probably just pass over that sentence. But once you have seen it, it triggers a series of further perceptions. If “fire” is the premise, then the Holmes example is even more disturbing in its application to political speech. It is the false shouting of “fire” that is criminal; presumably to shout “fire” when there is in fact a fire would be a service. Thus, within the terms of the example, everything turns on the truth or falsity of the premise. The parallel in a political context would be to shout “racism” or “injustice.”
After much discussion, we revised the sentence as follows:
The man shouting “fire” does not offer premises resembling those underlying radical political rhetoric—premises that constitute criticism of government.
Thus, at some cost in elegance and compression, we addressed the problem HK’s note had alerted us to. Was the change warranted? Was it responsive to what was bothering him when he wrote “watch this” in the margin? Having had the analytic perception, were we justified in making the change, even if this was not in fact what prompted the note? These are the sorts of questions of editorial propriety that occupied us after we had worked through the intellectual merits of a particular point.
The measure of a note’s importance was not its length or degree of detail. A question mark or a single word could have implications reaching far beyond its immediate setting. For example: HK’s strategy in the “subversive advocacy” section was to begin with Brandenburg, the Court’s most recent major precedent; he then returned to its first encounters with the issue during the World War I period and traced the development of the law back to Brandenburg. (In a note he commented: “Begin with the funeral, as in O’Hara story.”) The first case he discussed after Brandenburg was Masses v. Patten in 1917, the occasion for an opinion by Judge Learned Hand which he much admired. In his view, Hand in 1917 had an important insight into the nature of the problem which would soon be eclipsed by Justice Holmes’ clear and present danger approach. HK remarks in a sentence characteristic in its generosity and sweep:
As I see it, what Brandenburg does in its inelegant per curium opinion is to bring the law back at long last to the point where Learned Hand’s elegant opinion had left it fifty-two years earlier.
In the margin, beside this sentence, he wrote: “qualify?”
When this note is viewed in the context of the manuscript as a whole, it becomes apparent why HK was uneasy. Brandenburgannounced the principle that the constitutional line is located where advocacy of violence or law violation “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” That is, it combines the Hand emphasis on the content of the message with the Holmes emphasis on the surrounding circumstances. HK notes this in passing several pages later as a sort of afterthought at the end of a passage comparing the Hand and Holmes approaches, but he never again recurs to the point, though it would seem an important one.
We revised the sentence as follows:
Indeed, as I see it, part of the achievement of the inelegant Brandenburg per curiam opinion is that it recovers an insight into the nature of the problem of speech triggering action first advanced by Learned Hand’s elegant opinion fifty-two years earlier.
This revision was not the end of the matter. For here we touch upon a deep current flowing through the subversive advocacy section—HK’s intense dislike for the clear and present danger test. This is not an isolated instance; it is the burden of the argument; and it drives the plot. Acknowledgment that Brandenburg does more than simply recover the Hand approach—that it also incorporates the clear and present danger test—is thus of fundamental importance to HK’s interpretation of Brandenburg, to his analysis of the subversive advocacy issue, and to the lines of his narrative. The one word written in the margin—“qualify?”—ramifies. And ramifies.
There were several different bases for making additions to the manuscript. Many—perhaps most—of HK’s margin notes directed that material be added. Sometimes when we read a chapter against the outside resources absences became apparent. And there were gaps—some identified by HK, some forced on our attention by the internal logic of the manuscript—that demanded to be filled.
The general principle governing additions was that my words could be added, if they served as vehicles for relevant thoughts of HK’s which would otherwise have to be excluded. The key criteria were the clarity of HK’s instructions and whether the outside resources made clear the substance of the intended addition. Ideally, the outside resources would also provide language with which to execute the addition. This was not, however, essential. I was prepared to use my own words, if I was confident I had a secure grasp of the substantive point.
Most of the major additions were concentrated in Part One. That is where the unevenness of the manuscript was most pronounced. The early chapters were thin and fragmentary; HK had not yet hit his stride. The marginal instructions in that part of the manuscript were generally quite extensive and explicit. In part, this reflected his concern about the thinness of these chapters. In part, it reflected a more general pattern: the earlier the chapter, the more critical readings it went through, hence the more opportunity there was for marginalia to accumulate.
The “obscenity’ chapter, for example, was an instance in which we determined that substantial additions were warranted. The original chapter was only fifteen pages long and dealt with just one case. HK’s marginalia provided a clear and thorough diagnosis of what needed to be done. And there was a wealth of relevant outside material: several articles, four full class sessions devoted to the subject in the 1974 course, a great many notes. (It may be that one reason for the thinness of the chapter was that HK had already had his say on the subject and so was not engaged by it.) It was thus possible, guided by his instructions and drawing on the outside resources, to supplement “obscenity” with a fair degree of confidence as to the substance of his views.
There was, by contrast, another set of situations in which we found it necessary to make substantial additions, despite the fact that there was little or no specific direction from HK and few, if any, outside resources. The most significant instance of this was a projected but unwritten chapter in the “subversive advocacy” section. The gap fell in the middle of the account of the evolution of doctrine from the World War I cases to Brandenburg in 1969. It came between Chapter 12: “Speech Starts to Win” and Chapter 14:“The Great Confrontation—Dennis v. United States.” Although the essay did not miss a beat—the narrative did not stop and then start up again—it was clear that HK intended a chapter there. It was in his outline, and he had placed a title page between Chapters 12 and 14 and written on it: “The Heyday of Clear and Present Danger.” There was, however, little indication of his specific intentions apart from a marginal note which read: “Heyday of c/pd—Thornhill, Thomas v. Collins, Bridges again, Taylor, Barnette.”
At this point the essay is tending toward a development which has been clearly foreshadowed—the acceptance by the majority of the Court of the clear and present danger test—but instead HK skips over the decade of the 1940s to the Dennis case in 1951. Why did he leave this chapter unwritten? For one thing, the cases during the 1940s are difficult to accommodate within the analytic framework of the discussion because all but a few fall outside the subversive advocacy genre. Also, HK was eager to get to Dennis—and what he saw as the demise, once and for all, of the clear and present danger test. He recognized the need to deal with the cases of the 1940s, but seems to have seen this as little more than a housekeeping detail. They were not part of the story he was intent on telling. So, full of narrative appetite and momentum, he skipped over them.
The cases of the 1940s, however, were very much part of the story. Having skipped over them, HK slipped into a skewed perspective. Viewing Dennis against Gitlow, without reference to the intervening “heyday of clear and present danger,” he saw it as a doctrinal advance (albeit in the context of a debacle). But Dennis looks very different when viewed from the perspective of the precedents of the 1940s which established the clear and present danger test as majority doctrine.
Similarly, HK was puzzled about the logic of the Court’s opinion. Why, he asks, did it not simply rest on Gitlow? He suggests that the dissenting tradition has become more powerful than the official tradition and that the Court eschews Gitlow and adopts clear and present danger out of deference to Holmes and Brandeis. But then, having burdened itself with clear and present danger, the Court must restate the test in order to convict. HK wrote:
Chief Justice Vinson, having first gratuitously bound the Court to the Holmes-Brandeis view, now gratuitously restates that view so as to dilute the rigor of their test. He has indeed travelled the long way around the barn.
But Vinson’s deference to the Holmes-Brandeis view is hardly “gratuitous,” for that view is now majority doctrine. Moreover, the “heyday’ cases blocked easy access to Gitlow. Indeed, there is a sense in which the Dennis Court was attempting to get back to Gitlow—around the obstacle presented by those decisions. The route it takes, though circuitous, is not “gratuitous.”
The “heyday” chapter was not merely a gap that needed to be filled in the interest of completeness; it was an absence that distorted. It had to be filled in the interest of the subversive advocacy section as a whole. Apart from the chapter heading, this was not a matter of following directions from HK. Nor was it possible to draw on his other writings for this purpose. Rather, it was a matter of taking my bearings from the contours of the gap and filling it on the basis of an independent reading of the cases. Again, the addition ramified through the balance of the subversive advocacy discussion. The main lines of HK’s plot remain, but in a variety of ways they have been softened; qualifications have been entered; the distribution of emphasis has been adjusted.
A piece of writing takes shape as much from what is excluded as from what is included. To delete is a creative act; it can demand a deeper intellectual effort than to write. This can be the distinctive contribution of an editor: to suggest bold deletions which the author is too close to the work to conceive himself. Yet, ironically, in the case of this manuscript, it generally seemed less of a presumption to add my words than to delete HK’s; that is, it was easier to justify making additions intended to facilitate access to his mind than to justify substantial deletions. Were he alive, we would have strongly recommended that major deletions be made as part of a larger rethinking of the analysis. This project, however, was dominated by the fact that these are his last words.
The problem was not with repetitious passages or with the occasional passage that simply did not go anywhere. (We used to joke: “He is just clearing his throat.” Or: “He has just come back to the typewriter after a heavy lunch.”) Such passages were easy to delete. The difficulties peculiar to thus manuscript arose when the question was whether—in the service of some other intellectual or aesthetic value—to delete material that was of interest. In most instances, under the circumstances of this project, there simply was no higher value than preserving HK’s voice.
I did, however, find it necessary to make one major deletion. The original manuscript includes a short chapter titled “commercial speech.” This chapter contains two subsections. The first deals with the First Amendment status of commercial advertising. The principal case discussed is Valentine v. Chrestensen, a 1942 decision in which the Court held that advertising is not protected by the First Amendment. The second is devoted to the theme that “the fact that speech is sold for profit—and is in that sense ‘commercial’—does not deprive it of First Amendment protection.” It is advertising, not commercial publishing, that is denied protection under Valentine.
The “commercial speech” chapter presented two problems. First, it was without a clear position in the essay; it was a loose piece in the structural puzzle. It appears that HK may have intended this chapter and the one on “the child audience” to serve an introductory function; that he saw them as introducing general points of perspective (as opposed to surveying distinctive genres of speech problems). In any case, “commercial speech” was loosely grouped with the minor jurisdictions chapters. Second, commercial speech proved a busy area during the Burger Court years. In a series of decisions handed down after HK’s death the Court moved by degrees toward the conclusion that commercial speech is within the protection of the First Amendment.
At first these developments seemed to offer a possible solution to the structural problem. A unifying theme of the minor jurisdictions section is HK’s celebration of the recovery of various categories of speech from the domain of the censor. The extension of First Amendment protection to commercial advertising could thus he seen as bringing the chapter within that theme. At this stage the “updating” question—whether or not to add material on cases decided after HK’s death—was still open. So, on the strength of developments since his death, we integrated the chapter into the minor jurisdictions section. We did so provisionally and with misgivings. Over time those misgivings grew. We were concerned that inclusion of the chapter within the minor jurisdictions framework created an uncritically approving context for developments HK might well have found questionable. At the same time, we were coming to the conclusion that, as a general matter, updating of the manuscript beyond the time of HK’s death was neither necessary nor appropriate. The alternative of deleting the chapter altogether presented itself. We went back and forth on this: at different times each of us argued both sides of the question. We resisted deleting the chapter because it would mean removing a point on HK’s map and excising material of interest. Yet to include it would have risked seriously misrepresenting him. In the end, virtually on the eve of sending the manuscript to the publisher, we concluded that the chapter should be deleted. Although we do not know what HK would have said about the commercial speech developments, we do know that he would not have said what this chapter, presented in the context of the minor jurisdictions section, would have conveyed.
To talk of different genres of editorial changes is somewhat artificial. Most of the problems presented by the manuscript did not stand alone; nor did our responses. Almost invariably, as the work on a block of material progressed, we would find that broad tensions in HK’s thinking underlay various problems we had initially addressed, in isolation, one at a time. This could be an intense experience: a sudden surge of current as the connection between manuscript and mind was restored. There was the satisfaction of reaching the depth at which the choices were made—a sense of touching solid ground. It was as if the editing was a sort of ongoing reconnaissance which, little by little, yielded an ever more detailed map of his mind. That map, in turn, then guided the editing.
As the project progressed, HK’s mind—his mind as it survives in the medium of language— emerged as the central value. That perception oriented us; it served to clarify both the purposes of the project and the dangers that attend it. And it had an impact on certain questions of editorial policy we had carried forward with us. For example, it came to seem inappropriate—indeed, beside the point—for us to update the manuscript by adding material on developments after HK’s death. We were helped in reaching this conclusion by the odd historical circumstance that the areas of law which centrally concerned him have seen little activity at the level of the Supreme Court in the years since his death. Yet the decisive factor was our deepening perception that what is original and enduring and timely about the manuscript resides in the qualities of mind it embodies.
Have we kept faith with HK’s mind? I remain uncertain. The great challenge has been to distinguish between tensions that obscure his mind and tensions that are expressions of his mind. It has been to pursue internal consistency—coherence—while preserving the unresolved chords in his thinking. This was the most sensitive sort of editorial problem we faced. To what extent could we properly take on his confusions as our own? How far could we press toward their resolution? Could we properly act on the assumption that we could persuade him, if he was alive? Should we mute the unresolved chords in the text? Or, on the contrary, should we highlight them?
Sometimes the unresolved tensions in the manuscript were like a sprung bow: energy we could release. This could be immensely satisfying. At such times, the manuscript seemed a living thing, developing according to an internal logic HK had set in motion. There were many other times, however, when the effort to gain access to his mind yielded not clarity but confusion. This did not necessarily mean the editorial process had derailed. It may indeed have run true; it may have achieved access to his mind, but it was access to an area of active confusion in his mind. In one’s own work this can be the decisive moment; so often in a piece of writing it is that which resists one that is most alive. But under the circumstances of this project, it was a wall, a barrier, the end of the line.
The irony is that HK’s mind—actively baffled, puzzled, in play—never seemed closer at hand than it did at those moments. The sensation was one of coming close, so close, yet with no way to get any closer: oh, for an opportunity to talk with him, to press the point, to provoke a response. The danger was that our enthusiasm for a particular point and our frustration at not being able to urge it upon him would lead us to overreach—to revise his mind by way of his prose. In a sense, what happened at such moments was that the critical process outran the editorial process. I could write an essay on the tensions and unresolved chords in HK’s thinking on a particular point—sometimes I did so in the memos—but I could not justify making changes in his essay. I could justify editorial interventions that made his mind more accessible, but I could not justify changing his mind.
I am deeply marked by the knowledge that it is possible, through language, in Auden’s lovely phrase, “to break bread with the dead.” Yet that realization does not stand alone. It cannot be separated from the hard knowledge that this is only possible up to a point, that the connection is at best partial and intermittent. I have found that difficult to accept. Looking back, I can see now that I deferred completion in the hope I would somehow become wiser, able to see further, to go deeper; beneath the surface turbulence of my life, I waited.
The passage of time brought no answers, no breakthroughs, but it did bring unexpected gifts. Early on, I experienced the project as an isolated struggle to wrest something away from death. I approached it as a crisis, an emergency. With time, this changed. My understanding of tradition ripened. In large part, this was due to the generosity of those around me. The responsive chord the project struck in others and the good will it elicited both sustained and instructed me. I began to discern certain familiar motifs in the world around me. The refusal, through language, to accept death as final; the unfinished texture of things; the importance of fidelity to form (the discipline of one’s passion) as a means of acting appropriately in the midst of mystery—these themes, so explicit in my life by virtue of this project, proved to be present in lives all around me. I came to see the project as part of a larger community of effort, a larger conversation. Absorbed into the ongoingness of life, it became possible to bring to a close that which could never be finished.
The generosity that has meant most—sustaining the project and gracing my life—is that of my wife, Patricia Evans. Her life, no less than mine, has been caught in the web of love and language radiating out from my father’s words. I am grateful for her love and her support, for her patience and her impatience. Above all, I am grateful for her insistence that life has its claims. What we have created together is at the center of my understanding of this effort.
My first thought upon learning of my father’s death was, “But who will I talk with now?” Our ongoing conversation was for me a domain of freedom and delight; I loved talking with him. Little did I know at that moment that the conversation had not ended but rather had altered its terms; that it would not only continue but would, in some respects, deepen and intensify. My father’s last words—the wealth of questions he bequeathed—have enriched my life. At once a burden, a riddle, and a gift, this inheritance demanded a concentrated effort which, with the grace of time, disclosed spacious possibilities. The conversation will continue; the questions will remain in play. That is part of what I have learned: the work is always unfinished. Yet, mercifully, there are also endings. This phase of my conversation with my father is over. So, it is with the deepest gratitude and affection that I now, with these words, take my leave.