Absolutism and Free Speech

2011-10-11 11:29:59

Absolutism is an approach to interpretation of the First Amendment guarantee of freedom of speech that takes literally the text of the amendment when it declares that ‘‘Congress shall make no law . . . abridging the freedom of speech.’’ Under a theory of absolutism, Congress may not constitutionally interfere with free speech in any way; the theory would also limit the power of state and local governments, through incorporation of the First Amendment into the due process clause of the Fourteenth Amendment.

Although the U.S. Supreme Court never adopted an absolutist approach, the theory found credence in the decisions of Justice Hugo L. Black and, to a lesser degree, Justice William O. Douglas. Examining state restrictions on speech in dissent in Beauharnais v. Illinois, 343 U.S. 988 (1952), Black put it in simple fashion when he said, ‘‘I think the First Amendment, with the Fourteenth, ‘absolutely’ forbids such laws without any ‘ifs’ or ‘buts’ or ‘whereases.’’’ Throughout the 1950s and 1960s, as the Supreme Court created new tests to balance the state’s interest against free speech, Black objected. The ‘‘First Amendment’s unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in the field,’’ Black wrote in a dissenting opinion in Konigsberg v. State Bar of California, 366 U.S. 36 (1961). Black’s concern was that Balancing Tests made the importance of particular speech dependent on the value judgments of individual judges.

The views of Justice Douglas were less clear. In Dennis v. U.S., 341 U.S. 494 (1951), Douglas said, ‘‘The freedom to speak is not absolute.’’ But in New York Times v. U.S., 403 U.S. 713 (1971), the Pentagon Papers case, Douglas said the guarantees of freedom of speech and of freedom of the press leave ‘‘in my view, no room for governmental restraint on the press.’’

Even Black’s absolutism had significant definitional limits. When civil rights protesters in the 1960s argued that their demonstrations and lunch-counter sit-ins that led to their arrest were expressive conduct entitled to the protection of the First Amendment, Black drew a distinction between speech and conduct, finding the latter unprotected. Free speech, he wrote in Cox v. Louisiana, 379 U.S. 536 (1965), did not include the ‘‘right to engage in the conduct of picketing or patrolling, whether on publicly owned streets or on privately owned property.’’ In Adderly v. Florida, 385 U.S. 39 (1966), he wrote the Court’s opinion upholding the trespass convictions of students who protested outside a Florida county jail, rejecting the premise ‘‘that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.’’ Even when the conduct was symbolic expression, Black viewed it as action that was not protected. He dissented in Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969), in which the Court ruled that students could wear black armbands to school as long as there was no evidence that their protest caused disruption.


References and Further Reading

  • Meiklejohn, Alexander, The First Amendment Is an Absolute, 1961 Supreme Court Review (1961)
  • Smolla, Rodney A. Smolla and Nimmer on Freedom of Speech. 2005, § 2.49
  • Stembridge, Patricia R., Adjusting Absolutism: Extending First Amendment Protection for the Fringe, B.U. Law Review 907 (2000): 80

Cases and Statutes Cited

  • Adderley v. Florida, 385 U.S. 39 (1966) 
  • Beauharnais v. Illinois, 343 U.S. 988 (1952) 
  • Cox v. Lousiana, 379 U.S. 536 (1965) 
  • Dennis v. U.S., 341 U.S. 494 (1951) 
  • Konigsberg v. State Bar of California, 366 U.S. 36 (1961) 
  • New York Times v. Sullivan, 376 U.S. 254 (1964) 
  • New York Times v. U.S., 403 U.S. 713 (1971) 
  • Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969) 

See also Douglas, William Orville; Due Process; First Amendment and PACs; Fourteenth Amendment; Freedom of the Press: Modern Period (1917–Present); Freedom of Speech: Modern Period (1917–Present)