The Law: Sharp Line on Free Speech

Just what does free speech include? How obscene must a book or film be to lose the First Amendment protection? When can a soldier speak without fear of being punished for his words? Last week the question being argued before the court was whether or not a teacher can be fired by a public-school board for criticizing the superintendent of schools. In light of the continual immediacy of the problem, court watchers were looking carefully at Justice Hugo Black's Carpentier Lectures (TIME, March 29)—particularly at the final talk, in which Black dwelled on picketing and other forms of so-called symbolic speech.

Black reiterated his oft-expressed opinion that the free-speech guarantee includes every sort of speech, no matter how obscene. "All I am doing," he said, "is following what to me is the clear wording of the First Amendment that 'Congress shall make no law . . . abridging the freedom of speech or of the press.' As I have said innumerable times before, I simply believe that 'no law' means no law. I think the Supreme Court is about the most inappropriate supreme board of censors that could be found. The plain language of the Constitution recognizes that censorship is the deadly enemy of freedom and progress and forbids it." In short, free speech is an "absolute command" in Black's mind.

But he draws a sharp line between speech and action. "I believe, with Jefferson," he says, "that it is time enough for government to step in to regulate people when they do something, not when they say something." Recently, "many loose words have been spoken and written about an alleged First Amendment right to picket, demonstrate or march, usually accompanied by singing, shouting or loud praying, along the public streets, or in and around government-owned buildings, or in and around other people's property, including their homes, without the owners' consent. I do not believe that the First Amendment grants a constitutional right" in this area. "Marching back and forth, though utilized to communicate ideas, is not speech and therefore is not protected by the First Amendment." Nor, by that reasoning, is there any free speech protection for those who burn draft cards or desecrate the flag.

Black went on to make clear, however, that while the Government may, if it wishes, make laws to restrict demonstrations and pickets, it must apply such laws equally. Concluded he: "These laws must never be used as a guise to suppress particular views which the Government dislikes."