Few philosophers of civil liberties have had such a major impact on the Supreme Court’s jurisprudence of the First Amendment as Alexander Meiklejohn. His views on what the speech and press clauses mean were almost fully adopted in the Court’s landmark decision in New York Times v. Sullivan, 376 U.S. 254 (1964).
Born in England, Meiklejohn was eight years old when his parents emigrated to Rhode Island. After completing undergraduate studies at Brown University, he earned a doctorate in philosophy at Cornell in 1897. Upon graduation, he accepted an assistant professorship at Brown, and four years later became dean. In 1912, Amherst College offered him its presidency.
His eleven years at Amherst were marked by curriculum innovation, and his educational reforms in many ways tracked the civil liberties arguments he would later enunciate. As at Brown he spent a great deal of time on student matters and won a national reputation as a motivator of young men. During World War I he brought controversial speakers to campus, and insisted that the opponents of American entry into the fray should be given equal time with those in support. He brought younger faculty onto the campus, who proved—to his and the students’ delight—to be not only excellent teachers but also thought provoking. Meiklejohn did not believe that education consisted of indoctrination, but rather of providing students with the basic tools they needed to think and to challenge the accepted pieties. He also hired the first-ever college writer-in-residence, the poet Robert Frost.
Given the politically charged atmosphere of the war years, it is no surprise that the conservative trustees, led by financier Dwight Morrow, disapproved of Meiklejohn’s leadership and fired him on the morning of commencement in June 1923. The firing triggered an uproar. A dozen students refused to accept their degrees, several faculty members resigned that day, and newspapers in Boston and New York carried the story, with both sides stating their cases, for weeks. After his dismissal, Meiklejohn, reportedly a spellbinding speaker, traveled around the country, giving a number of talks on academic freedom and his ideas as to what constituted a good education, and he published a number of these in Freedom and the College (1923).
In 1926, Meiklejohn accepted an invitation to join the faculty at the University of Wisconsin and to found a college that would implement his pedagogical ideas. He ran the Experimental College, as it was called, from 1927 to 1932; while in the short run the effort proved unsuccessful, many of its ideas would later be incorporated into the curricula of a number of American schools. The students in the school lived together in designated dorms and, unlike the regular students, had no required classes or even examinations. In the first year they studied ancient Athens in the age of Pericles; the following year they explored contemporary American society. They did this through a variation of the English system of tutorials and papers. In their third year they rejoined the regular undergraduates or transferred to another college.
The Experimental College brought a great deal of national attention to Meiklejohn and his ideas, and he even made the cover of Time magazine. But like his work at Amherst, it roused the opposition of traditionalists, especially among faculty and administrators wedded to the idea of lectures, set curricula, and graded examinations. They in turn began to tell Wisconsin parents that children educated in the Experimental College would be unfit to earn their livings or function in the outside world after graduation. As a result, enrollment fell and the university ended the experiment in 1932.
Meiklejohn wrote of his experience at Wisconsin and of his belief in a core curriculum in The Experimental College (1932). His ideas, which struck many as radical, were really not fitted for a large state university. The use of tutorials is labor intensive and requires a student-to-faculty ratio that one normally finds only at small private colleges. But the idea of a core curriculum was later picked up and proved successful at Columbia, from which it spread to a number of other schools. The great books curriculum has been the hallmark of St. John’s College in Annapolis, where it was installed by one of Meiklejohn’s former students. The two-year nonrequirement curriculum is at the heart of the Echols Scholars Program at the University of Virginia and at the interdisciplinary Evergreen State College in Washington State.
After leaving Wisconsin, Meiklejohn moved to Berkeley, California, where he lived and worked until his death. He continued his educational reforms through a privately financed program in adult education, the San Francisco School of Social Studies. He also wrote widely, and books such as What Does America Mean? (1935) and Education Between Two Worlds (1942) are extensive critiques of American society and education. He considered many of the problems a result of what he termed ‘‘Protestant capitalist civilization.’’ Scholars who have analyzed his work conclude that Meiklejohn was not a Marxist; in fact, he did not fit easily into any defined school of social thought or philosophy. He admired and developed ideas from Jean-Jacques Rousseau and Immanuel Kant, both of whom wrote about the role of education and the moral life.
From the start Meiklejohn had been interested in and a champion of civil liberties and had antagonized conservatives at Amherst by his insistence that opponents of World War I have the opportunity to present their case. Now he began to devote more of his energies to that field. He founded and for a number of years headed the northern California chapter of the American Civil Liberties Union, one of the earliest chapters in the ACLU’s history and from the beginning one of its most active. During the ‘‘red scare’’ of the 1940s and 1950s, Meiklejohn was among the very few defending the right of communists to speak their views, and he opposed the national ACLU’s expulsion of an admitted communist from its board. He also defended University of California faculty members who refused to sign a loyalty oath pledging that they had never been communists.
He also began to think more about the philosophical basis of free speech, and wrote about it in a number of articles and in two very important books, Free Speech and Its Relation to Self-Government (1948) and Political Freedom: The Constitutional Powers of the People (1960).
The jurisprudence of free speech in the United States was still in its rather early stages when Meiklejohn began writing. As late as 1907, in Patterson v. Colorado, 205 U.S. 454 (1907), the Supreme Court held that the First Amendment did little more than prohibit prior censorship of a statement; once uttered or printed, however, the speaker or writer could be prosecuted for libel. In the World War I cases, Justice Oliver Wendell Holmes, Jr. (who had also written the opinion in Patterson) laid out the idea of a ‘‘clearand- present danger’’ test. Initially, the justice used this test to justify governmental suppression of free speech in wartime, but later converted it to a more speechprotective standard. For Justice Holmes, free speech was necessary so that various notions could be presented in the marketplace of ideas.
Meiklejohn appears to have been influenced by Justice Louis D. Brandeis’s opinion in Whitney v. California, 274 U.S. 357 (1927), in which the justice laid out the notion of free speech as necessary in a democratic society. Certainly much of Meiklejohn’s theory tracks Justice Brandeis’s ideas, although he would in the end go much further in what he considered the types of speech that the First Amendment protects.
Like Justice Brandeis, Meiklejohn considered the free exchange of ideas necessary for a democratic society to function. Citizens had to make decisions, and in order to make those decisions intelligently, they needed to have information and to hear all sides of an issue before making up their minds. For Justice Brandeis, this meant freedom of speech for the speaker, even the speaker of unpopular ideas. Meiklejohn expanded this to include a ‘‘right to hear.’’ No matter how heated an issue, no matter how unpopular the ideas of one side or the other might be, the public had a right to hear any point of view, since knowledge is essential in democratic decisionmaking. This overrides any governmental interest in silencing a particular point of view, and Meiklejohn emphatically rejected Justice Holmes’s ‘‘clear-andpresent danger’’ test.
Meiklejohn did not argue that the speaker had a right to speak the truth or that the public had a right to hear the truth, but rather that for the people to be their own rulers, they had to have access to different truths. Many ideas are subjective, such as the best tax rate to spur economic growth or to protect middleincome families. Is capitalism the best system to promote happiness and well-being? The people could, in the end, decide that they really did in fact like and want to keep in the current system, but in order for them to make a wise decision they needed to hear all sides of the arguments.
Meikeljohn initially believed that freedom of expression ought to be confined to governmental or political issues, and this would have allowed regulation of other forms of speech, such as obscenity. He later refined his position to say that in order to make decisions about government and political issues, discussion of issues related to education, philosophy, arts, science, and so forth was necessary. In fact, one could never be sure just what issues would prove to be important, so Meiklejohn eventually moved to a nearabsolutist position similar to the one espoused by Justices Hugo L. Black and William O. Douglas.
To allow this much speech, of course, could lead to raucous interactions, and Meiklejohn was prepared to accept that as one of the prices of democracy. Perhaps the best exposition of this notion came in Justice Brennan’s opinion in the landmark case of New York Times v. Sullivan (376 U.S. 254, 1964), in which the justice described discussion in a free society as ‘‘wide open and robust.’’ If it at times it seemed overly noisy or disjointed, and even if at times misguided ideas were shouted about, that was all right too. The opinion, which struck down traditional libel limits on criticism of public officials, tracked Meiklejohn’s ideas closely, and when he heard of the decision, he declared it ‘‘an occasion for rejoicing in the streets.’’
Few philosophers not only have seen their work influence the jurisprudence of the Supreme Court, but also have that influence acknowledged by the justices. When Meiklejohn received the Presidential Medal of Freedom from John F. Kennedy in 1963, four members of the Court came to the White House to join the ceremony. After his death, Justice Brennan wrote a tribute in which he acknowledged the importance of Meiklejohn’s ideas in developing First Amendment jurisprudence.
Since Meiklejohn’s death the Supreme Court has retreated in large measure from his equation of the ‘‘right to hear’’ with the ‘‘right to speak,’’ and First Amendment jurisprudence is focused primarily on the speaker rather than the listener. This has been especially true in cases involving the press clause. Justice Potter Stewart took a very ‘‘Meiklejohnian’’ approach in his idea of the press as an institutional entity, in which the press reported to the people information they needed but which they could not necessarily secure themselves. For example, it is important to have open and free coverage of trials so that people know that the criminal justice system is working properly, although it is clear that the vast majority of the citizenry could neither take the time to attend nor, if they could, be accommodated in the courtroom. The people had a right to know, and the press served the institutional role of providing that information.
Because he died before the Court began dealing with other types of speech, it is unclear how much protection Meiklejohn would have given to nonpolitical speech or how far he would have been willing to go to allow that some forms of art, for example, might have political components. But his influence in education and civil liberties theory remains important; if the Court is no longer as attached to Meiklejohn’s principles as it used to be, the heart of First Amendment jurisprudence still derives primarily from Justice Brandeis’s Whitney opinion and Meiklejohn’s elaboration and expansion of those ideas.
MELVIN I. UROFSKY
References and Further Reading