We Must Not Be Afraid to Be Free: Stories of Free Expression in America

448 Pages·2011·2.3 MB·English

by  Ronald K.L. Collins

We Must Not Be Afraid to Be Free
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We Must Not Be Afraid
to Be Free
Stories of Free Expression in America
R K. L. C
ONALD OLLINS
S C
AM HALTAIN
1
1

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Copyright © 2011 by Ronald K.L. Collins and Sam Chaltain
Published by Oxford University Press, Inc.
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All rights reserved. No part of this publication may be reproduced,
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Library of Congress Cataloging-in-Publication Data
Collins, Ronald K.L.
We must not be afraid to be free : stories of free expression in
America / by Ronald K.L. Collins & Sam Chaltain.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-19-517572-1 (hardcover : alk. paper)
1. Freedom of speech—United States. 2. United States. Constitution. 1st Amendment.
3. Civil rights—United States. I. Chaltain, Sam. II. Title.
KF4772.C65 2011
342.7308'53—dc22 2010014506
1 3 5 7 9 8 6 4 2
Printed in the United States of America
on acid-free paper
to
Bunny Kolodner
—RC
&
Cornelia Spelman
—SC
Two women who, in diff erent ways ,
taught us what it means to be fr ee.
Too many men are being driven to become government-fearing and time-serving
because the Government is being permitt ed to strike out at those who are fearless
enough to think as they please and say what they think. Th is trend must be halted if we
are to keep faith with the Founders of our Nation and pass on to future generations of
Americans the great heritage of fr eedom which they sacrifi ced so much to leave to us.
Th e choice is clear to me. If we are to pass on that great heritage of fr eedom, we must
return to the original language of the Bill of Rights. We must not be afr aid to be fr ee.
—Justice Hugo L. Black
April 24, 1961
Contents
Prologue. Freedom and Fear: Justice Hugo Black 1
1. First Amendment Fundamentalism: George Anastaplo
and Free-speech Absolutism 4
2. “Everybody Is against the Reds”: Benjamin Gitlow and the First
and Fourteenth Amendments 17
3. Calling Dr. Meiklejohn: Alexander Meiklejohn
and First Amendment Th eories 39
4. “Th e Final Jury of the Nation”: Daniel Ellsberg and National Security 59
5. Fighting Times and Fighting Faiths: Eugene Dennis and the Clear
and Present Danger Test 88
6. Saving the NAACP: Robert Carter and the (Civil) Right to Associate 134
7. Crosses and Crises: Edward Cleary and Hate Speech 172
8. Striking Back at the Birchers: Elmer Gertz and Defamation 208
9. Saving Old Glory: Gregory Johnson and Flag Desecration 238
10. Count-Me-Ins and Count-Me-Outs: Mary Beth Tinker and Student
Speech 269
Epilogue. Hugo Black and Beyond: Th e Future of Freedom 293
Free-speech Timeline 303
Acknowledgments 325
About the Authors 327
Notes 329
Sources 367
Index 413
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Prologue
Freedom and Fear: Justice Hugo Black
If we fi ght for freedom, we should maintain freedom.
— Walter Pollak ( 1940 )
September 11 challenged our convictions. It defi ed our resolve for freedom, that
dedication to let liberty be the default position in life and law. Times of crisis
(1798, 1800, 1861, 1914, 1917, 1941, 1968, 2001), aft er all, test the “sunshine
patriot” in each of us. Th ey pit the need to defend our security against the desire
to defend our liberty. Or so it seems. If history is any compass of the direction of
things, liberty is too oft en lost in such times. Why? What is it in us—in all of us,
liberal and conservative alike—that would trade away that very freedom that sets
us apart from our adversaries?
Th is book speaks to that question by exploring how freedom and fear function
in the context of free speech in America. Th e First Amendment1 stories that
follow—all true—are fi ltered through the lenses of freedom and fear. Th ese
stories are about select moments in the First Amendment’s tortured evolution;
they speak to its multiple meanings and what all this portends for the future of
America. 2 Some of these stories or portions of them have been overlooked. Some
are long forgott en. Others are more familiar. By telling the history of some of the
people who have helped shape our law of freedom of expression—the litigants,
lawyers, lawmakers, and judges—we hope to retell more than a few remarkable
chapters in our nation’s struggle for freedom of speech, press, petition, and assem-
bly. At times, the struggles were honorable; at other times, they were shameful.
But the common thread in our stories is the people who wove their way into the
quilt of our nation’s constitutional history.