Freedom of Speech and the First Amendment: Explorations

TEXAS TECH LAW REVIEW

VOLUME 21 1990 NUMBER 4

FREEDOM OF SPEECH AND THE FIRST AMENDMENT: EXPLORATIONS

by George Anastaplo*

In extremely absolute monarchies, historians betray the truth because they do not have the liberty to tell it; in extremely free states, they betray the truth because of their liberty for, as it always produces divisions, each one becomes as much the slave of the prejudices of his faction as he would be of a despot. - Montesquieu' INTRODUCTION ...... 1942 I. KNOWLEDGE AND IGNORANCE IN PLATO'S APOLOGY OF SOCRATES ...... 1945 II. THE NAZI SPEAKER ON THE UNIVERSITY CAMPUS ...... 1958 III. SUBVERSION AND LEGISLATIVE INVESTIGATIONS ...... 1975 IV. VIETNAM AND THE PRESUMPTION OF CITIzENsmP ...... 1979 V. IT'S YOUR COUNTRY ...... 2007 VI. THE FIRST AMENDMENT RECONSIDERED ...... 2016

Copyright 1990 by George Anastaplo. All rights reserved. The editors have complied with the author's stylistic preferences in this article. - Ed. * Professor of Law, Loyola University of Chicago; Professor Emeritus of Political Science and of Philosophy, Rosary College; and Lecturer in the Liberal Arts, The University of Chicago; A.B., 1948, J.D., 1951, Ph.D., 1964, The University of Chicago. 1. MONTESQUmU, THE SPMTrr oF Tm LAws bk. 19, ch. 27, p. 333 (A.M. Cohler, B.C. Miller, & H.S. Stone, eds., 1989). This passage in Montesquieu continues, "Their poets would more often have an original bluntness of invention than a certain delicacy of taste; one would find there is something closer to Michelangelo's strength than to Raphael's grace." Id.; see infra note 104 and accompanying text, and infra note 139. The reader is urged as with my other publications, to begin by reading the text of this article without reference to its notes, except for the note at the beginning of each of the nine parts of this article. The opening note for each part indicates the occasion for which that part was originally prepared.

1941 1942 TEXAS TECH LA W REVIEW [Vol. 21:1941

VII. SUBVERSION, THEN AND Now ...... 2041 VIII. FREEDOM OF SPEECH AND THE CHARACTER OF PUBLIC D ISCOURSE ...... 2051 IX. FORMS MAY MATTER: A COMMAND PERFORMANCE ..... 2065 CONCLUSION ...... 2085

INTRODUCTION The nine exercises in freedom of speech collected here are, except for the first and last talks, arranged in the order in which they were originally developed by me between 1963 and 1988. Each of the nine discussions set forth in their entirety in this article was fashioned with the interests and needs of its particular audience in mind. (This partly accounts for whatever repetitions may be found in the pages that follow.) One is not likely to be useful if one speaks altogether abstractly, or without regard for circumstances, about practical matters. There is little point in having any First Amendment guarantee of freedom of speech if there are not important things that can be known, if the good and the bad cannot be rationally distinguished, and if discussion does not help us with such determinations. 2 The opening talk in this collection provides reassurances about these matters, particularly since Socrates is often regarded as one of the more thoughtful heroes of the freedom of speech tradition in the Western World. We can see here that he, despite his self-proclaimed ignorance, does know things (and knows that he knows things) that are vital to human conduct. Even so, it is salutary, if freedom of speech is to be used responsibly, for influential citizens to be aware of the natural limits of any people's understanding of things. Those limits are suggested by the consideration of the relation of convention to nature touched upon in the closing talk of this collection, which echoes (albeit in a less elevated mode) the opening talk. Those limits are also suggested by the way that a war should be talked about in public while it is

2. Unless otherwise indicated, in this article the constitutional right of "freedom of speech" refers to the rights confirmed by the speech, press, assembly and petition provisions in the First Amendment. That amendment may be found in the text at note 157, infra. See infra note 82. On the uses of freedom of speech by Americans before the ratification of the First Amendment, see G. ANASTAPLO, THiE CoNsrrrtrroN OF 1787: A COMMENTARY 11, 66-69, 227 (1989) [hereinafter ANASTAPLO, CONSTITUIrON OF 1787]; see also infra note 110. 1990] FIRST AMENDMENT: EXPLORATIONS 1943

still going on. This may be seen in the central talks of this collection which deal with the Vietnam War and the problems of self-government. These talks are flanked by two short comments, two decades apart, on American responses to supposed subversion. Perhaps the most "topical" talk in this collection is the oldest, my 1963 discussion of whether a Nazi speaker should be permitted to appear on a university campus. The problems addressed in Part II of this collection are once again becoming acute as impassioned efforts are made by some students and faculty to keep certain controversial speakers off campus, especially speakers regarded as "reactionary" or "sexist." My own position, for some forty years now, has led me to defend from time to time the privilege of campus organizations to invite and hear "Fascist," "racist," "militarist," "fundamentalist," "radical," "anarchist," and "Communist" speakers. The thoughtful student can learn much from observing such people in the flesh. We can all learn that it is not prudent to saddle academic officers with the duty of trying to judge each speaking invitation on its merits, at least in our circumstances. Nor should students be permitted to veto who can be invited to speak on campus by the administration, by the faculty or by recognized student groups. The title provided for each part of this article indicates the aspect of that part which is being emphasized, at least for organizational purposes, in this context. More often than not, the title or notes for the nine parts of this article have been crafted for this occasion. I provide ample citations to other publications of mine developing various points touched upon in the nine talks collected in this article. My first book, published in 1971, offered a detailed reading of the First Amendment. 3 I believe it salutary to anticipate what I say in this article by recalling here the passage with which that book closes: Is it not evident that the only practical access to nobility for [the American] people remains its dedication to freedom and to the manliness, disciplined self-confidence, humanity, pride, and even

3. G. ANASTAPLO, THE CONSTITUTIONALIST: NOTES ON THE FIRST AMENDMENT (1971) [hereinafter ANASTAPLO, THE CONSTITUTIONALIST]. Additional publications by me touching on First Amendment questions are cited supra note 2, and infra notes 5, 12, 16, 18, 22, 26, 30, 43, 44, 45, 48, 50, 53, 71, 79, 82, 87, 96, 111, 114, 116, 117, 118, 119, 133, 143, 159, 174, 177, 183, 199, 209, and 211. 1944 TEXAS TECH LA W REVIEW [Vol. 21:1941

justice which can be said to be implied by that freedom? A vigorous defense of freedom seems to me the only cause which can have an enduring appeal for our young, especially when its defense is coupled, as it can be, with integrity of character. Those who dilute our ancient faith in freedom threaten the principal support of our regime. The swelling crusade for the justice of equality can have permanent worth only if our freedom, with its implications of excellence, can be preserved. No doubt, there are among us abuses of freedom of speech. But why should our generation act as if it has been the first to discover them? The truly dangerous consequences of these abuses are anticipated in the Constitution, which reflects a deeper prudence than that policy which has recourse to periodic repression. The best safeguard against abuses is found in the good sense, the self- restraint, and even that "tone of impartial justice" of which a self-governing people is capable. It is found, that is, in the good government that has somehow resulted from our dedication to freedom and to freedom of speech. One can fully appreciate how well Americans govern themselves only if one compares the efforts made elsewhere to do at all what is done so well and even so casually here. American republicanism remains not only "the world's best hope" but also the noblest testimony that men have today of their faith in one another - in, that is, the ability of man to use his reason properly to secure for himself and his posterity the good things of this life. Timid men should be reassured that our republican experiment not only has worked, but has worked much better than eighteenth-century republicans had a right to hope for: it may well be the best which our political circumstances, nature, and traditional opinions will admit. The republican of our day, however subject to continual reex- amination his salutary opinions should be, is entitled to conclude, "We must not be afraid to be free." 4 Perhaps the most challenging question before us, now that the Cold War seems to be ending, is what it means to be truly free. The example, as well as the thought, of a Socrates can be most instructive here.

4. ANASTAPLO, TI CONsTrrTtONALsT, supra note 3, at 284-285. The quotation at the end of this passage is taken from the conclusion of Justice Black's dissenting opinion, In re Anastaplo, 366 U.S. 82, 116 (1961). See infra Part IX. The passage in which that sentence from Justice Black is found may be seen in the text at note 197, infra. 19901 FIRST AMENDMENT: EXPLORATIONS 1945

I. KNOWLEDGE AND IGNORANCE IN PLATO'S APOLOGY OF SOCRATES 5 These lectures represent an attempt to go back to the origins of rationalism, and therefore to Socrates. The oldest document regarding Socrates is Aristophanes' comedy the Clouds .... Among those who approach Plato in order to become enlightened by him about Socrates, it has become customary to pay the greatest attention to certain dialogues, called the early dialogues, and especially to the Apology of Socrates. The Apology of Socrates may be said to be Socrates' own account, given on the most solemn occasion, of his way of life; and its solemnity may be thought to be increased by the fact that that account is a public account, an account given in public to the public par excellence .... 6 - Leo Strauss

It can be startling, upon returning to Plato's Apology of So- crates, to notice how much Socrates displays himself as knowing. This can be startling, considering how emphatic Socrates seems, and is generally taken by readers of the Apology to be, about knowing little if anything of worth, unless it is that he knows that he does not know. (22E-23B) His self-confessed ignorance colors the entire

5. This talk was given to the Rochester Area Political Theory Group, Rochester, New York, December 6, 1985. The translation of Plato's Apology drawn upon here both for quotations and for the citations in the text is that prepared by Thomas G. West and Grace Starry West for the Cornell University Press. My discussions of other Platonic dialogues may be found in the following: ANASTAPLO, TrE CONSrrUTIONALIST, supra note 3 at 278-81; 5/6 INDEPENDENT J. OF PmLOosOPHY 85-91 (1988); Anastaplo, How to Read the Constitution, 17 Loy. U. Cm. L. J. 1, 26-36 (1985) [hereinafter Anastaplo, How to Read); Anastaplo, Seven Questions for Professor Jaffa, 10 U. PUGET SOUND L. REV. 507, 546-54 (1987); Anastaplo, Book Review, 32 Rav. OF METAPHYSICS 773 (1979) (reviewing R. STEhRNFLD & H. ZYSEIND, PLATO'S MENO (1978)). An extended discussion of Plato's Apology may be found in G. ANASTAPLO, HUMAN BEING AND CITIZEN: ESSAYS ON VIRTUE, FREEDOM AND THa COMMON GOOD 8-29 (1975) [hereinafter ANASTAPLO, HUMAN BEING AND CrTzEN]. See also infra notes 16, 17.' I attempt to take a fresh look at philosophy and nature by stepping outside the Western tradition with introductions I have prepared to the Confucian Analects, to the Bhagavad Gita, to the Gilgamesh, to the Koran, and to Buddhist thought. These may be found in the 1984, 1985, 1986, 1989, and 1991 volumes of THE GREAT IDEAS TODAY, an annual publication of the Encyclopedia Britannica. 6. L. STRAUSS, THE REB13TH OF CLASSICAL POLITICAL RATIONALISM 117, 150 (T. L. Pangle ed. 1989) [hereinafter Straus, REBImTH; see also L. STRAuss, SOCRATES AND ARiSTOPANES (1966); infra text accompanying note 181; infra note 205. 1946 TEXAS TECH LAW REVIEW [Vol. 21:1941 dialogue. A note of self-deprecation is struck at the very beginning: "How you, men of Athens, have been affected by my accusers, I do not know."(17A)7 An inconclusiveness, at least as to whether it is better in his circumstances to die or to live, remains to the very end: "But now it is time to go away, I to die and you to live. Which of us goes to a better thing is unclear to everyone except to the god." (42A) Yet is it not apparent to all readers of the dialogue that there is something special, even knowing, about the way Socrates asks questions and makes use of the answers he gets? Socrates always asks questions - this indicates that he does not know; he is very good at asking questions - this indicates what he does know.8 Thus, it can be said, there are some things that Socrates does know, among which is how to clear away the rubbish that many take for knowledge. To replace error by truth - or, at least, to expose error and allow room for truth to emerge - can be generally appreciated as praiseworthy. Still, such clearing away of rubbish can seem destructive and otherwise threatening, if not even antisocial, since (if one is not careful) there are also likely to be cleared away many opinions on which a community depends to make life pleasant and interesting, if not even endurable. Among the things called into question by Socrates in the Apology, if not also by his general way of life, is an opinion upon which the community's vitality may rest - the opinion that life is always, or nearly always, markedly preferable to death. (37C, 38D sq.) The spirit of negativity attributed to Socrates with respect to what is widely believed, either about things in general or about Socrates in particular, can seem to the reader (and could well have seemed to the five hundred Athenians entrusted with Socrates' fate) not only perverse but dangerous. The more thoughtful can recognize the highmindedness of what Socrates says and does. But thoughtful- ness does depend on time - that is, upon an opportunity to get to know someone as unusual as Socrates, or to consult with those who

7. This may be literally true insofar as Socrates is surprised by the closeness of the vote on the issue of guilt or innocence. (36A-B) I do not attempt to do much in this talk to distinguish among the three speeches that Socrates gave on that occasion. Nor do I attempt to say how much of what Socrates does know here is considered by him of enduring worth. See infra note 21. Many more citations to the Apology could be added to the ones I provide. 8. See ANASTAPLO, HuMAN BEiNG AND CrrIZEN, supra note 5, at 244 n. 45. 1990] FIRST AMENDMENT: EXPLORATIONS 1947

do know him - and time is something in short supply on this occasion, as Socrates points out in criticizing Athenian judicial procedure in capital cases. (24A, 37A-B) What, then, can become apparent when one reflects, preferably at leisure, upon what Socrates says and does in the Apology? Here we can see how startling it indeed is what Socrates displays himself as knowing, perhaps even as knowing that he knows, in this unique dialogue between him and the city of Athens. ii.

It is evident, first of all, that he does know something (one suspects a great deal) about how to talk with the city on such an occasion. So effective is he that he secures far more votes for acquittal than he had evidently anticipated. That is, he knows how to talk so as not to lose whatever support he started with.9 Furthermore, he knows what else he could have said and done (for example, by displaying his family) in order to win the additional votes needed for acquittal - but he does not care to pay the price he knows that such expedients would exact of him and of Athenian institutions. 0 So astute is Socrates with respect to his audience that he can anticipate the sorts of things that will arouse them to disturbances. (17C-D, 20E, 27A-E, 30C) 11 However astute Socrates is in the conduct of his defense within the limits he deliberately sets for himself, he does insist, "I am conscious I am not at all wise, either much or little." (21B) He also reports himself "conscious" that he has "knowledge of nothing, so to speak." (22C) We are challenged to ask, "What, then, does Socrates know?" Is "knowing" to be distinguished from being

9. Socrates' accusers evidently warned the court about his skill in persuading people. (17A-B) See infra note 21. 10. Another way of making this point is to say that Socrates knows what someone such as Gorgias would be able to say, and with "good" effect, in such circumstances. See PLATO, GoRtYAs 456A-457C, 484C-486E, 523A sq.; see also L. ARNHART, ARISTOTLE ON POLITICAL RnEAso~t~ 193 n. 55 (1981). 11. It could be useful to consider the Athenians that Socrates fails to move to vote for acquittal at the trial. Who are these people who were able to harden their hearts against him? They are not the truly thoughtful; nor are they the most naive, who would probably respect him for his advanced age, his wife and children, his military service, his daemonic thing, and even his charm. Those "in-between" who condemn him, or at least their leaders, are of the "sophisticated," however suspicious they may be of the sophists. On the proper respect for military records, see infra Part VII. 1948 TEXAS TECH LAW REVIEW [Vol. 21:1941

"conscious" of something? I suggest that what he knows includes many things that his "counterparts" today may also wish to know but do not believe it possible for anyone to know, especially those of his "counterparts" who believe that many things supposedly known by some people are really "values" which cannot be known with the assurance that "facts" can be known. Even so, it is not appreciated by such moderns that many of the things they believe can be known as "facts" depend on other facts which they dismiss as unknowable "values." Furthermore, are there not things that cannot be fully seen for what they are if their intrinsic goodness or 2 badness cannot be grasped as well?' What, then, does the Socrates of the Apology indicate, explicitly or implicitly, that he knows? I have, in the course of my reading of the dialogue for this occasion, compiled a catalogue of more than one hundred such things, things which Socrates indicates he knows, various of which could alone provide the basis for extended discussion. It is convenient to divide this catalogue into three parts, even though various of the items would fit into more than one of these roughly distinguishable parts. The three parts can be usefully designated as knowledge of particulars, knowledge of more general things, and knowledge of principles (or, to use modern terminology, "abstractions").

iii.

The "particulars" that Socrates seems to know a good deal about can be collected in the following categories: the past, others, himself, the laws of Athens and of other places, and the future. Let us begin then with some of the things he knows about the past, a past which is of such a character that he can say about what happened to him at the trial, "Perhaps these things even had to be so, and I suppose there is due measure in them." (39B) We see at the outset of our review of this catalogue that our distinctions among the parts

12. See ANASTAPLO, Natural Right and the American Lawyer and Law and Morality, in HUMAN BEING AND CITIZEN, supra note 5, at 46-60, 74-86; PLATo, REPUBLIC 493A-C; see also G. ANASTALO, THE ARTIST AS THINKER: FROM SHAKESPEARE TO JOYCE 250-53, 275-78, 339- 44, 482-85 (1983) [hereinafter ANASTAPLO, THE ARTIST AS TaNER]; infra text accompanying note 167; infra note 193. It is easy for democrats to believe that everyone is equally likely to be correct, that there are no authoritative speakers and perhaps no right answers. 1990] FIRST AMENDMENT: EXPLORATIONS 1949 are somewhat forced, in that principles reside in or are suggested by the particulars he knows. The distant past is known as well as the more recent past. From the distant past he knows various poets, whom he names and draws upon, and he knows the stories about gods, demigods and men told by such poets and by others. (27A-E, 28A-D, 29B, 40E-41C, 42A) The stories and heroes of Homer seem to be particularly well known to him. From the recent past he knows about the doings of Chaere- phon at Delphi, the character both of Chaerephon and of the Delphic institution, what "the god" told Chaerephon about the wisdom of Socrates, and the relation of Chaerephon to the popular party in Athens. (20E-21A) He indicates, here as well as elsewhere, that he knows, often from personal experience, about the recent great war and its consequences (including the rule of the Thirty Tyrants and the exile and then the return of democratic partisans). (20E-21A, 32B-D) Finally, he knows that it is out of the distant past, especially because of the passions aroused by his conduct pursuant to a remarkable saying brought back long ago by Chaerephon from Delphi, that there has come the hatred of him which now threatens his life. (20E sq.) He can even argue that that hatred, incurred as it has been, testifies to the truth of what he says. (24A) On this note we can move to what Socrates knows about others. Thus, he knows what the people at large are like and how they have been affected by the old accusers he knows to have been long at work. (18C-D) He knows many other things about the people of Athens, including the fact that a preoccupation with money-making is the critical way that Athenians and Athens can go bad. (30A sq., 36B, 41E)'3 He also knows, of course, of the stature of Athens in the Greek world, appreciating that Athens is more likely to be tolerant of him than other cities would be. (37B sq.)

13. We see here a consideration that is central to what is happening, or is likely to happen, in the United States as well. Montesquieu observes: Certainly, when democracy is founded on commerce, it may very well happen that individuals have great wealth, yet that the mores are not corrupted. This is because the spirit of commerce brings with it the spirit of frugality, economy, moderation, work, wisdom, tranquility, order, and rule. Thus, as long as this spirit continues to exist, the wealth it produces has no bad effect. The ill comes when an excess of wealth destroys the spirit of commerce: one sees the sudden rise of the disorders of inequality which had not made themselves felt before. MONTESQtumu, supra note 1, at bk. 5, ch. 6, p. 48; see id. at bk. 3, ch. 3, p. 23, bk. 5, ch. 3, p. 43; see also ANASTAPLO, HumAN BEING AND CrrzN, supra note 5, at 14. 1950 TEXAS TECH LAW REVIEW [Vol. 21:1941

Athens (perhaps this is true of all cities) can be described as honoring deeds more than words. (32A) All cities sleep (they are always in a state of living death?) without someone such as Socrates to prod them awake. (31A) Indeed, most people, and particularly his accusers, are not serious (that is to say, truly consistent) in what they believe about the gods. (27A) In this Socrates is superior to them. (35D) Among "the others" whom Socrates knows are his friends and supporters. He can notice some of them present whom he knows by name; he also knows who has died. (33D sq.) He knows as well that the relatives of corrupted youth are apt to complain against their corrupters, and yet no relative has come forward to accuse him. (33D sq.) Also among "the others" known by Socrates are those known to people at large, including some known only by name: Aristophanes (with Socrates' remembering what Aristophanes had said about him in a comedy many years before) (19C-D), Gorgias and other traveling teachers (with Socrates having heard what they claim to know and to do, and with whom Socrates knows himself to be generally identified) (19D-20A), Evenus (who is currently peddling his intellectual wares in Athens) (20B-E), and Anaxagoras (whose doctrines about the sun and the moon are available in books on sale at that very time in Athens) (26D). Socrates knows very well the character of Meletus, what he believes, and what he is apt to say upon examination at the trial. (24D sq., 26A sq.) He also knows who are believed in and by the city of Athens to be wise. He knows as well how to examine such presumably wise men so as to test, and hence to understand, what the oracle of Delphi had said. (21B sq.) He thus learned that many who are believed to be wise simply are not so. (21D sq.) In the process he learns or confirms that poets do make fine things, but that they do this by inspiration and so cannot understand their own things. (22B sq.) The artisans, too, have some knowledge, knowledge not shared by Socrates, but they, unlike Socrates, do not recognize the limits of their knowledge. (22D sq.) Finally, among the "others" whom Socrates knows, or knows something about, are the divinities. He can insist that it is not sanctioned for the god (through the Pythia at Delphi or in any other way?) to say anything false. (21B) But what the god truly says may not be what it at first seems to be. Socrates must figure out what the god probably meant when he said that no man was wiser than 1990] FIRST AMENDMENT: EXPLORATIONS 1951

Socrates: that only the god is wise; that "human wisdom is worth little or nothing." This is what the god must have meant by speaking of Socrates as he did. (23A-B) This has led, in turn, to Socrates' knowing what the god orders: that he deal in a certain way with men who seem or pretend to care for virtue when they really do not. (30A sq.) A general disbelief in gods may be evident even in the way defendants plead and beg in court, something that the Athenians sitting as judges permit if not even encourage. (35D) Socrates' own knowledge of, if not belief in, the gods extends to his knowing the various ways they say things to human beings. (33C) Furthermore, he is able to surmise what it means that his daemonic thing has not deterred him on this occasion, which means that he also knows the way the gods (if a god is involved here) advise men by not "speaking." (40A sq.) 14 He can apply to the existence of daemonic beings, which some of his enemies are evidently willing to concede that Socrates has long claimed to believe in, the things he knows about the genealogy of divinities and hence about the existence of the gods, drawing upon what he knows about the genealogy and existence of horses and mules. (27C sq.) There is a problem here, of course, in Socrates' casual assumption that the way one understands animals can be usefully extended to one's understanding of gods.

iv. We move now to what Socrates knows about himself. He knows that he himself has not said certain things, the things that old accusers such as Aristophanes and new accusers such as Anytus have attributed to him. (18A-B, 19C-D) He believes that he has a certain human wisdom (20D-E); also, that he is the beneficiary of his daemonic thing which, in its life-preserving concerns on his behalf, indicates to him how he should conduct himself. (31C sq.) So he does not believe himself to know things he does not know (21D); nor does he believe himself to have done anyone any injustice. (37B) Rather, he sees his service to the god as not being surpassed by any other good for the city (30A sq.), which means that Athens will not easily discover anyone as good for Athens as Socrates if he should be

14. On Socrates' daemonic thing, see ANASTAPLO, HuMAN BEING AND CizaN, supra note 5, at 10-11, 27-28, 235 n. 13, 236 n. 15, 241 n. 35, 244 n. 44, 246 n. 51, 315 n. 14. 1952 TEXAS TECH LA W REVIEW [Vol. 21:1941 killed. (30E) He cannot be easily replaced in caring service for the city, a dedication which his very poverty testifies to. (31B-C) His poverty reflects the financial and other sacrifices he has undertaken in the god's and hence the city's service. (23B sq.) Since he has provided the greatest benefaction to the city during his lifetime, he. deserves something good from them by way of "punishment," such as free meals in the Prytaneum for the rest of his life. (36D sq.) 5 In short, it can be said that Socrates does know himself, and that he is worth more than many who think highly of themselves but who are not really worth anything. (41E) That is, must we not assume that Socrates knew about himself- at least the things we know about him? Among the things Socrates knows about himself is his familiarity with the laws of Athens, however much he disparages his ability to argue in court. (17B sq.) He knows, for example, that laws must be obeyed (25D), that a law provides for defense speeches (19A), that the law condemns as criminal only knowing or deliberate corruption (26A), that the law may compel someone such as Meletus to be a witness and to answer questions when called upon (27C), that the law provides for defendants to be tried singly and not altogether (as was done over Socrates' opposition at the time of the trial of the generals) (32B-C), and that law-breaking is unjust. (32B-C) He considers himself someone who has not broken any laws, but rather someone who has acted justly, and he knows that to be good. (42A) On the other hand, he considers the Athenians not to be just in the way they conduct trials and in the way they permit defendants to behave, and So he can advocate relevant judicial reforms. (35B sq., 37A-B) Certainly, he exhibits himself as one who is quite familiar with how things usually go on in the courts of Athens. (32A-B, 34C, 35A, 36A-B) So familiar is he with the courts, and with justice itself, that he can be quite selective in whom he chooses to call "judges." (40A) (Meletus, in his own remarks, is not selective, addressing all five hundred members of the court as "judges." [24E, 26D]) May not the five hundred have noticed what we can notice, that Socrates never addressed them as "judges" during his first speech? That is,

15. On how winners of the Olympic games are treated, see PLATO, REPUBLIC 465D, 466E. Socrates' version of the Prytaneum-treatment can be said to be the prison in which he was lodged and fed (?) by the city for the rest of his life after he was found guilty. 19901 FIRST AMENDMENT: EXPLORATIONS 1953 he knows at this point that he cannot yet know who is who! (26D, 39A, 40A) Finally, among the things Socrates knows about "particulars" is what he knows about the future. Here he works, in part, from what he knows about his own reputation, that he is regarded by some as wise. (23A, 34E) He also knows how someone of his reputation should act. (34E-35C, 36B sq., 38E) He knows, therefore, what will be said some day about Socrates and about those who killed him. (38C sq.) Socrates thus serves as an oracle to the Athenian people, predicting that vengeance will be visited upon them for what they do to him. (39C-D) The young will be even worse than they have ever been during Socrates' lifetime, since he has restrained them. (39 C-D) Again and again Socrates indicates that the things he is testifying to can be shown, upon investigation (including the asking of various people present), to be true. (24D) We thus conclude our review of the sort of things usefully designated as knowledge of particulars which Socrates has.

V. We now turn to the more general things, which can be regarded as of a practical character, that Socrates seems to know a good deal about. These can be collected in the following categories: moral matters, political matters, the status of law, the art of speaking, and the significance of death. We begin with his knowledge of moral matters. Thus, he knows how one should live. This is reflected in his advice to Callias about how to have his sons trained (20B-C), in his interpretation of what the Pythia really meant (21A sq.), in his insistence that one should not delude oneself about one's own worth. (41E) He knows as well what usually moves people to act as they do (34A), how they can resent others who have not been as weak as they themselves have been (34C sq.), how self-important they can regard themselves in sitting as judges (36A), and how slander and envy have led to the conviction of many other good men (28A sq.). It is important, he insists, that the youth be made as good as possible. (24D sq.) Particularly to be guarded against, at least in Athens, is the effect of a great desire for money, reputation and honor. (29E sq.) It should be apparent to everyone, as it is to Socrates, that it would not really harm him to pay money as punishment upon his conviction. (38E) 1954 TEXAS TECH LA W REVIEW [Vol. 21:1941

Truth and the best possible condition of the soul (that is, virtue?) should be aimed at. (29E sq.) Various evils should be avoided - not the evil of being killed and so forth but rather the evil of killing another unjustly. (30D) One's primary concern should be not to be unjust or impious. (61A) It helps to be confident, as Socrates is, that it is not sanctioned that a better man can be harmed by a worse. (30C-D) Indeed, he insists, nothing bad can come to a good man, whether living or dead. (41C) (This is not to say that his accusers are not worthy of blame for what they have attempted to do. [41D]) In short, the greatest thing (and this would be true in Hades also) is to search out the wise, exposing those who suppose themselves wise but who are not and inquiring as to who is in factjust. (41B sq.) It is this sort of activity that offers human beings "inconceivable happiness." (41B) When we consider what Socrates knows about political matters, we cannot help but notice how dubious he is about what a man of true merit can accomplish in the ordinary city. It is for the court a vexing truth which he must tell them, that he would have perished long ago if he had attempted to be politically active. (3iD sq., 32E sq.) He knows well, and cannot help but act on what he knows, about the difference between the just and the ignoble things, including speeches. (28D) He also knows that "it is bad and shameful to do injustice, and to disobey one's better, whether god or human being." (29B) Of course, this implies that there are better and worse beings, and that they can be identified. He notices that the better are more apt to be among the few than among the many. (28A-B) This is not apt to be a happy opinion for democrats to hear. Be that as it may, Socrates knows that villains hurt those close to them, while the good help them. (25C-D) One is harmed if those close to one are corrupted. (25D-E) Do not such opinions point to education rather than to political efforts and judicial sanctions as the best way of dealing with wrongdoing? We have already touched upon what Socrates knows about the status of law. It suffices to observe here that he insists that the law should be obeyed, or at least that it should seem to be obeyed.' 6 This leads us to what Socrates knows about the art of speaking, which is exhibited throughout this dialogue with the city. He knows

16. See ANASTAPLO, HuMAN BEIO AND Crrum, supra note 5, at 203-13 (on Plato's Crito); see also Anastaplo, How to Read, supra note 5, at 26-36. 1990] FIRST AMENDMENT: EXPLORATIONS 1955 how to be careful in what he says, in that he can avoid saying what he himself believes about such things as the sun and the moon. (26D) What he has to say about the trial of the generals quietly (and hence responsibly?) points to the problems there are with Athenian opinion about the gods of the city. (32B-D) But to speak quietly, or carefully, is not to speak "privately," which he denies ever having done. (19D, 30B, 33B-C) He knows how to have the effect of speaking privately even as he speaks publicly. Certainly, the way he uses names and quotations indicates that he knows what he is doing (e.g., 28B), just as does the way he organizes his three speeches. Here and there he can be playful (e.g., 36A-B), but he is not willing to say any unworthy things, even if his life should depend on them. (38D-E) Finally, among the "practical" matters that Socrates knows, there is what he knows about death. There cannot be certainty, he indicates, about precisely what happens at death. (40C sq.) But still, there are things that can be known about death in addition to what he knows about what cannot be known. First, he knows, as perhaps few men ever do, that death is inevitable: most people conduct themselves as if they think they can avoid it forever if they can but escape it this time, even at the cost of doing an injustice or acting ignobly. (35A, 42A) Death should not be made much of, especially when duty indicates otherwise. (28D sq.) But what most people do not appreciate is that it is harder to escape villainy than to escape death on any particular occasion. (39A) Even so, does not the lifelong guidance Socrates has had from his daemonic thing imply that life itself may be good, provided one can live as one should? Much of what Socrates has to say,.in this command performance about both moral and political matters is summed up in his insistence that it is hard for most people to believe what he says about not being able to disobey the god, or about what the best way to live is, or about an unexamined life being "not worth living for a human being." (37E sq.) To speak against an unexamined life is to suggest that one can know the standards by which one's life may be examined.

vi. We can now turn, if only briefly, to what Socrates knows about what we have called "abstractions," or principles, which we can also designate as the more "theoretical" matters. First, there is his repeated indication that there is such a thing as truth (e.g., 17A sq.). He can several times urge his hearers, "Know well," as if there should be 1956 TEXAS TECH LA W REVIEW [Vol. 21:1941 truths particularly worth knowing. (28A sq., 30A sq., 30C sq., 31D sq., 33B-C) (The last use of "Know well" comes, appropriately enough, as he explains that "one does not speak the truth" if one claims that Socrates taught anything privately.) Not only may truth be distinguished from error, but some things are "both true and easy to test." (33C) Certainly, he himself prefers the truth (17A); he is confident that he does deal in the truth, whereas his accusers (old as well as new) simply do not. (17B sq.) He finds it unreasonable not to know the names of those who slandered him of old. (18C-D) This points to his opinion that something is seriously wrong when one does not know how things are. One gets the impression that Socrates believes that the cosmos is known, or at least knowable to some extent, if one makes the effort.17 Also indicated here and there are the existence of the ideas, the moral ordering of the world, and the ability of man to know because nature somehow asserts herself. (22E, 38E, 41C-D) These are all things not appropriate for him to develop, even to the extent that other things known by Socrates are developed, in this dialogue. It suffices here to point to how these more "theoretical" matters might be developed by noticing the repeated Socratic indication that he does consider himself to be philosophizing. (23C-D, 28E, 29D, 31D-32A, 38C, 40A, 41D) He can also insist that it is better to philosophize and to obey god than not to do so. (29D) Something of what philosophy is and of what god is not may be seen in what he says and shows us about examining and refuting those who are believed to know something. Knowing, including the knowing of what knowing is and is not, is vital to that philosophizing to which Socrates has devoted his life. What knowing means should include an awareness of the many things we have seen which Socrates does consider himself to know.

vii. It is in part because Socrates came across as a "know-it-all" that he came to be condemned, in particularly troublesome times, by his "long-suffering" fellow citizens, especially since among the things he indicated he knew was how little others know. To make those people

17. See, e.g., PLATO, MENO 80E, 81C-E, 86A-C; see also ANASTAPLO, HumAN BING AND CITIZEN, supra note 5, at 244 n. 45; infra note 18. On Plato's Meno, see ANASTAPLO, HUMAN BEING AND CITIZEN, supra note 5, at 82-86. 1990] FIRST AMENDMENT: EXPLORATIONS 1957 seem foolish whom the many regard as wise is to make the many seem foolish as well, something which one can find it dangerous to do unless perhaps one is a comedian. Socrates is even more of a "know-it-all" because he indicates that he knows the things he knows primarily through his own efforts, which means that he truly knows them. He does invoke the Delphic oracle, but only as a starting point, since he puts even the god to a.test. There are few if any things he reports that he has gotten in any way other than through the use of reason. There is, we have seen, the guidance provided by his special daemonic thing, which can be understood to teach that life may be good after all. Even this, however, can be known by the natural reason itself, as is evident in what someone such as Aristotle can say about the intrinsic sweetness of existence. 8 Socrates must also have come across, because of a demeanor and a set of opinions which are intimately related to one another, as a strange and hence threatening being. There must be something unusually provocative in a man who can be deliberately killed by his fellow citizens at the age of seventy. He does talk "big," and so can seem arrogant. 19 Not only does Socrates indicate that his knowledge ("unworthy" though much of it may be in some respects) comes from reason alone, but he also indicates that what he knows about death makes dubious what the Athenians believe about or expect from the gods. The charge that he does not acknowledge the gods that the city acknowledges may fully mean that he does not believe as the Athenians do about death and about the need for, and the powers and efforts of, the city with respect to death. Even his disparagement of money- making implicitly repudiated something which is frantically pursued for what it seems to contribute to self-preservation. 20 To say what he does

18. See ARISTOTLE, POLmCS 1277b25-29. "Then it's the philosopher, keeping company with the divine and the orderly, who becomes orderly and divine, to the extent that is possible for a human being." PLATO, REPUBLIC 500C-D. My quotations from Plato's Republic are taken from the Allan Bloom translation published by Basic Books. On the relation of law to how one should lead one's life, see Anastaplo, Aristotle on Law and Morality, 3 WINDSOR YEARBOOK OF ACCESS TO JUSTICE 458-64 (1983) (to be included in ANASTAPLO, THE AmEmIcAN MORALIST, to be published in 1991 by Swallow Press/Ohio University Press). 19. Xenophon reports that Socrates was treated as he was at his trial partly because he talked "big." See XENOPHON, SOCRATES' DEFENCE TO THE JURY 1-2. On the Xenophonic Socrates, see L. STRAUSS, XENOPHON'S SoCRATIC DiscOURSE (1972); Berns, Socratic and Non- Socratic Philosophy: A Note on Xenophon's Memorabilia, 1.1.13 and 14, 28 REv. OF META- PnivScs 85 (1944). 20. On the relation between money-making and self-preservation in Charles Dickens's A 1958 TEXAS TECH LAW REVIEW [Vol. 21:1941 about death may be to challenge the city's very being in critical respects. It calls into question the stories about, and hence the expectations connected with, the gods of the city. Socrates' opinions do appear to engender in him a remarkable serenity, even in the face of death. But do not such opinions - opinions which reflect his unwillingness or inability to acknowledge mere life as the good above all other goods - prove most disquieting to the Athenians? Have not these opinions, which come out most strongly in Socrates' second and third speeches in the Apology, been evident in the way he has conducted himself all of his life, including the conduct he can refer to in his first speech, the speech upon which his conviction was based? For the Athenians, Socrates' opinions about death can call into question everything the Athenians hold dear, exposing to view the abyss over which all human activity and even purposefulness may otherwise seem to be suspended, especially for those who make much of what we know as "individuality." It may well be that Socrates' challenging confidence about the many things he does know, which confidence he was willing to back up with his very life, made the Athenians all too fearful that he may have been right about death and hence about the many things which 21 they had so long, and so uncritically, believed themselves to know. II. THE NAzI SPEAKER ON THE UNIVERSITY CAMPUS22

I think that no idea is so outlandish that it should not be considered and viewed with a searching, but at the same time, I hope, with a steady eye. -Winston Churchill23 i. A Jewish student at the University of Chicago, acting on behalf of the residence hall of which he happened to be program chairman,

Christmas Carol, see ANASTAPLO, THE ARTIST As THINKER, supra note 12, at 123-41. On the sometimes dubious influence of money-making in the United States, see infra text accompanying note 146. 21. Socrates asked on another occasion, "To an understanding endowed with magnificence and the contemplation of all time and all being, do you think it possible that human life seems anything good?" PLATO, REPuauc 286A. See infra note 193. It should be noticed that more of the court voted for Socrates' death sentence than had voted for his conviction. This shift in the course of an hour or two suggests how 'Socrates' challenges over the years must have angered many of his fellow citizens. Compare supra text accompanying note 8. On Socrates' eventual identification of himself with non-Athenians, see ANAsTmLO, HUMAN BEING AND CITIzEN, supra note 5, at 11-12. He does know the difference between Athenians and non-Athenians. 22. This talk, originally entitled "Principle and Passion: The American Nazi on the 19901 FIRST AMENDMENT: EXPLORATIONS 1959 wrote to G. L. Rockwell, National Commander of the American Nazi Party, and invited him to appear February 25th and explain his party's platform. Mr. Rockwell accepted the invitation. When the arrangement became known, public controversy began. Letters and articles in the student newspaper, The Maroon, and conversations with the initiating student led the members of the residence hall in whose -name the invitation had been issued to reconsider the arrangement. A vote of the members, however, confirmed the invitation and, since considerable public interest had been aroused, a request was made of the University for space suitable for the crowd that was anticipated. The original invitation might never have been issued but for the public announcement, shortly before, that Northwestern University had cancelled a similar invitation that had been extended to Mr. Rockwell by, a student organization on that campus. The President of Northwestern said on that occasion, No good purpose would be served in granting Rockwell the privilege of addressing a group of students at Northwestern. What he stands for, what he says, are the antithesis of what we stand for. 24 Student organizations at the University of Chicago are permitted to invite speakers of their choice and to make arrangements for the use of available University assembly halls.for that purpose. Mandel Hall was announced as the scene of the Rockwell lecture. Attempts were made by some students and faculty, as well as by people off the campus, to persuade the University Administration to cancel the invitation that had been issued to Mr. Rockwell. These attempts were

University Campus," was given at the Channing-Murray Foundation (Forum for Dissent), Universalist-Unitarian Student Program, The University of Illinois, Urbana, Illinois, May 13, 1963. I was at that time a graduate student at the University of Chicago, having previously earned there the A.B. and J.D. degrees. I was also teaching at the time, as I still am, in the Basic Program of Liberal Education for Adults at the University of Chicago. See ANASTAPLO, Tms AlIST As THINKER, supra note 12, at 299-300..This 1963 talk was included among the appendices to my doctoral dissertation, G. Anastaplo, Notes on the First Amendment to the Constitution of the United States 728-46 (Ph.D. diss. University of Chicago, 1964) [hereinafter Anastaplo, Notes]. 23. 361 PARL.. DEB., H.C. (5th Ser.)-795 (June 4, 1940). Mr. Churchill, as Prime Minister, had to deal on this occasion with dire predictions about an anticipated German invasion. He provided this counsel: "We must never forget the solid assurances of sea power and those which belong to air power if it can be locally exercised." Id.; see also infra note 218 and accompanying text. 24. U. Chi. Maroon, Mar. 6, 1963 at 1. 1960 TEXAS TECH LA W REVIEW [Vol. 21:1941 officially rejected in a statement by the Dean of Students. An unsuccessful appeal to the President of the University, that he cancel the lecture, was made by a group of faculty members. Their letter of protest, because of the stature of several of the signers, is 25 particularly significant. A bomb scare led to the last-minute transfer of the meeting from Mandel Hall to the smaller assembly hall in the Oriental Institute. It was a bitterly cold night, but the crowd outside must have been equal to that which managed to squeeze into the hall. Mr. Rockwell appeared with one lieutenant, neither of them in uniform or with insignia. A strong contingent of Chicago and University police was in control both inside the hall and out on the street. Attendance, for which admission was charged, was limited to Uni- versity students, faculty and administrators and to the press. (The money collected was used to reimburse the University for the special expenses incurred because of the meeting. It had been announced that any balance would be donated to a local civil liberties organization.) The evening proceeded without. incident indoors. Two men, who identified themselves as refugees from Europe, were arrested by the police for alleged disturbances as Mr. Rockwell arrived for his talk. Charges against the two were not pressed. ii. I turn now to a preliminary discussion of several of the issues suggested by this affair.

25. The faculty letter of protest is set forth in note 27, below. The statement by Warner A. Wick, the Dean of Students, appeared in the U. Chi. Maroon, Feb. 22, 1963. It reads: The University of Chicago's Student Code provides that recognized student organizations "may invite and hear speakers of their choice on subjects of their choice." I expect no truth or wisdom from George Lincoln Rockwell. It seems to me that he has nothing to offer us but hate and violence; and I believe that the students who invited him here after learning he had been barred elsewhere are of the same opinion. In these circumstances, the significance of Mr. Rockwell's visit will be chiefly symbolic, reminding us that private citizens have a right to hear, in peace, any opinions that they may wish for reasons that seem sufficient to them, so long as they observe the laws governing private gatherings. What began as an impulsive suggestion has been elevated to a matter of principle; for as opposition has spread both within and outside the University, the more important it has become to these students to demonstrate that the freedom we take pride in exists in fact as will as in name. Although we should have preferred to celebrate our principles on an occasion that promised to be more wholesome, the University will keep its faith with the student code and with the tradition of free interchange that the code embodies. My comment on this letter at the time is printed infra at note 30. 1990] FIRST AMENDMENT: EXPLORATIONS 1961

One issue that some members of the faculty have raised is whether students of the University should have any power to invite speakers of their choice to address their organizations. This is to be distinguished from the question whether, granted such a power in recognized student organizations, the University should exercise a supervisory power, which I will consider next. It is certainly a reasonable argument that all educational activities on a campus - and guest speakers could be considered to fall within this category - should be completely within the control of the faculty, not only in the sense of supervision but even to the extent of initiation. The trainer, one can plausibly argue, knows better than the colt what is needed to make a good horse, a well-trained horse. But perhaps the experienced trainer knows that some decisions about the colt - such as how much he will eat or who can best exercise him - may best be made with some respect for the colt's preferences. The trainer recognizes, that is, that individual differences cannot always be ministered to by general rules or a standard program. The students who come to the University of Chicago have widely varying backgrounds; their interests are different, as are the careers they intend .to pursue. This variety is accentuated by the many courses of study available to the student. The approach appropriate for a small college in which a uniform course of study is carefully pre- scribed is not one which is feasible for a large university with many graduate departments and with many faculty members devoted primarily to research. It is inevitable in such circumstances that organizations should be formed for the pursuit of particular interests. I can testify from my own experience my first year at the University to the importance of the work done by student organizations in arranging speakers. Although I was fresh out of the Air Force and had served in the Pacific, Europe, and the Middle East, there was much I had simply not been exposed to. I believe I attended during that first year at least three lectures a week in addition to the course work I was following. No doubt, a good deal of my time was wasted - but since I carried successfully a double load of courses, it would be hard to maintain that my school work suffered as a result. There were lectures on almost every conceivable subject. I probably attended at one time or another the meetings of every student group sponsoring public programs on the campus. ' If these lectures had not been arranged by students, many of them would never have been available - and the University would have been a drabber place without them, just as it would be less well-informed 1962 TEXAS TECH LAW REVIEW [Vol. 21:1941 if the much-maligned Maroon, also put out by voluntary student activity, were to suspend publication. Some of the student-organized talks are of too poor a quality to be worthy of university or departmental sponsorship; others are outside the technical jurisdiction of particular departments; still others are thought to appeal to too limited audiences to be taken seriously by faculty organizers. Besides, every faculty member worth his salt is busy enough with his own work. For such reasons, therefore, students can and do arrange lectures and discussions that would not otherwise be offered and seem to me to provide a service to the university community. One sees here an analogue to the many voluntary organizations in the American community, organizations per- forming services that the government might do and sometimes even do better, but which in their total production and effect simply could not be duplicated by the government. Still another class of speakers is more likely to be sponsored by independent student organizations than by official university bodies: the controversial speaker. Students sometimes do not know enough to be prudent. Besides, there are occasions on which the attribute that one's elder consider imprudent really manifests the deeper prudence. It is my impression, for instance, that Senator McCarthy's forays into the educational world a decade ago drove most faculty members to cover, whereas students were much more apt to be outspoken in opposition. It is also my impression that the youngster entering college in recent years comes with a suspicion of his teachers: he cannot but be influenced by what he has heard of how his elders behaved when academic freedom, to say nothing of the freedom of the country, was threatened. 26 Of course, most of his teachers were not supporters of Senator McCarthy; but neither were they openly resisting him and his works. One can understand the student's insistence on his right to see the world through eyes other than simply those of his teachers - and the prerogative of inviting speakers is an aspect of that right. (I will return later to the effects of the exercise of that prerogative.) The student will not infrequently

26. See A. MEIKELore, PoLmcAL FkEEDOM 125-47 (1960); see also Anastaplo, In re Allan Bloom: A Respectful Dissent, inEssAYs ON THE'ECLosING oF THE AmEaRcA MiND 272- 75 (R. Stone ed. 1989) [hereinafter Anastaplo, In re Allan Bloom]. (This article was originally published in the 1988 volume of THE GREAT IDEAS TODAY, an Encyclopedia Britannica publication.) 1990] FIRST AMENDMENT: EXPLORATIONS 1963 invite someone of significance with whom the university faculty will be, and perhaps sometimes should be, reluctant to have anything to do. Still another justification for the power given to students to invite speakers of their choice depends on the peculiar character of American political life, a life in which these students will become citizens capable of responsibly exercising the power of self-government. The way they are permitted to conduct themselves at school is, in part, habituation for the way they will be called upon to conduct themselves in later years. I cannot close this inventory without noting, however, that the student's primary purpose at school is to learn what his teachers can teach him: I have already conceded that, in principle, it would be possible to have a good educational institution in which every intellectual activity to which the student is exposed is directly and immediately under the control of the faculty. But I do not believe that the faculty of any large American university today is either equipped or inclined to exercise such control.

ill. We have looked at the problem from the perspective of the student (if only, to be sure, the more enterprising or the more daring student, or even, if you please, the student who is a busybody). What can be said about this problem from the perspective of the University faculty and administration, particularly in response to those who grant the usefulness of much student activity but who nevertheless insist on the duty of the administration to supervise and, 27 if necessary, to veto student decisions?

27. It was to such a duty that the signers of a faculty letter of protest to the President of the University of Chicago addressed themselves on February 22, 1963. That thoughtful letter, signed by Leo Strauss, Herbert J. Storing, Robert A. Goldwin, J. Coert Rylaarsdam, Marvin Meyers, Leonard Binder, Ralph Lerner, David Grene, Arcadius Kahan, Bert F. Hozelitz, and Zvi Griliches, reads: It is now in your power alone to prevent an event that must be described as an affront to all decent men, about to take place on this campus. The purpose of this letter is to urge you to take the necessary steps to deny the use of any University facilities to the self-styled American Nazi, George Rockwell. Responsible opinion on the campus seems to be agreed that it was a grave mistake to invite Rockwell to speak here. The action of a small group of students was surely a reflection on.their judgment and maturity and perhaps also on the education which we have provided them. But there are many who argue, for a variety of reasons, 1964 TEXAS TECH LAW REVIEW [Vol. 21:1941

I am sure there would be no serious objection if the University were to cancel a lecture that constituted, or was likely to constitute,

that the invitation once having been extended, it would be an infringement of the principle of freedom of speech to bar Rockwell from speaking here. In our opinion, this argument is erroneous and stems from a misunderstanding of the principle of free speech and from an ignorance of the true character of Naziism. The foundation of our system of government and of all the freedoms it secures is the principle of the dignity of man. But the essence of Naziism is the denial of the dignity of man. Nazis assert that some human beings - human beings not belonging to the Aryan master race - may and should be exterminated. In contrast, the most extreme and vicious Southern segregationist demands no more than that Negroes be second-class citizens. It is clear that every Nazi is an enemy of the freedoms which Rockwell and those who have invited him now claim for him. He would, if he could, destroy the foundation of principles and institutions which secure these freedoms. In response to this, some say that the present and future political importance of the American Nazi party are so slight that it represents no threat. But such a statement and prediction must be considered in the light of recent history; many intelligent and well-informed observers made the same estimate and prediction about the parent Nazi Party thirty-five years ago. But the issue is not primarily whether Rockwell will find converts here or advance his cause through publicity the University may afford him; the question is whether he has any right to speak at this University. That, under the present policy of the American government with respect to the Nazi party, Rockwell has a legal right, subject to the ordinary laws, to speak wherever he can find an audience may be conceded. But the question is whether the University of Chicago, an institution of higher learning, respected throughout the world, is under any obligation whatsoever to provide this Nazi with facilities and an audience. Rockwell, like any Nazi, starts from a denial of the basic principle of our government. But is that a reason for barring him? Must not a University be allowed to discuss the most basic American principles? When basic principles of our government are discussed - and that means, necessarily, questioned - in this University, they must be discussed responsibly and in a genuine endeavor to pursue the truth. The fine between speech that conforms to this criterion and speech that does not is sometimes hard to draw. But surely it is not hard to draw in the case of Rockwell. No one would dare to assert on Rockwell's behalf that he is qualified to lead us in a genuine search for the truth about political matters. The issue is what the University undertakes to teach - and a university teaches through those it invites to speak as well as through its regular faculty. A speech by Rockwell under University auspices would be as much a betrayal of the basic principles of our University as of the basic principles of our country. There are some who contend that it is a part of education to expose the students to the existence, in the flesh, of moral and political corruption, the better to understand and to be protected against it. It is, we hope, sufficient to say that the University would presumably not permit any group of students to invite a prostitute or rapist to address a University audience on the basis of such a principle. And if there should be circumstances where it would be reasonable to invite such a person, the decision would surely be taken only after thorough consideration and reflection by the responsible University authorities, and not by a small group of students acting to vindicate a mistaken notion of human freedom. 1990] FIRST AMENDMENT: EXPLORATIONS 1965 an immediate physical hazard to students - if crowding or the press for admission were to endanger lives or damage buildings; or if the activities of the lecturer were to put life in jeopardy (for example, by the use of fire or by a demonstration of firearms). There should probably be a presumption, in addition, against a speaker who can be expected to commit a clearly unlawful act in the course of his talk, certainly if the act is of a non-political character. We might even add that a speaker who counsels or advocates illegal action should perhaps not have University facilities made available to him. But here one must be cautious: we have had speakers in recent years who have defied, and been imprisoned for defying, Congressional investigating committees - and these speakers have not only explained but also defended and, in effect, advocated resistance to such committees, a resistance that could be said to be in the best American tradition. One objection that was emphasized on our campus was the impropriety, even the disgrace, of the University's identification with Mr. Rockwell and his party. But does not this identification depend on what an appearance on the campus in these circumstances should be taken to imply? So long as the University's supervision is of the kind I have indicated - relating either to the establishment of the legitimacy of the organization extending the invitation or to the physical safety and legality of the meeting to be held - there is no necessary identification of the University with the students' guest speakers, no more than there would be an identification of the University with the parents of students, with the patients treated in the University Clinics, or with the clients who use the legal aid services at the Law School. The extent of identification depends, in large part, on what it is taken to be, that is, on what it is said to be. The University can make it clear that it neither endorses nor condemns particular speakers invited by student organizations. It might be thought by some that students interested in pursuing a radically unusual line of inquiry can go to where the speaker is

The simple fact is that this man has no claim whatever to a platform on our campus and that no principle of politics, education, or hospitality requires that the University play host to him. We respectfully urge you, for the reasons given, to exercise your authority to bar this despicable and dangerous man from the use of any University facilities. Only you, now, can prevent this disgrace to all of us. Only you can prevent this shameful desecration from taking place. See infra text accompanying note 117; infra note 186. 1966 TEXAS TECH LA W REVIEW [Vol. 21:1941 rather than bring him to the campus - and for the proper appreciation of many speakers, a visit to the habitat might be most revealing. But this would tend to cut down the alternatives presented on campus to the less enterprising, but still curious, student. In some instances, this could place the student in immediate physical danger that the University is obliged to protect him against, the University's concern and duty here being as legitimate as that reflected in the supervision of hours for young female students in this country. If the speaker is brought to the campus, the chances are best that the interests served will be primarily that of the student. On the question of University identification, we are reminded again of the lessons of the McCarthy era. Administrators tend to be timid folk. It is much easier to justify a speaker because of a rule permitting students to invite whomever they please than to justify the refusal in particular instances to exercise the veto that is available (or, even worse, to justify the assent implicitly given to the students' action). One can say that administrators should be braver. But why insist unnecessarily on bravery? Besides, the administrator simply may feel, or can be made to feel, that what the students want is something they really do not need. We have seen on our campus during the past eighteen months such diverse speakers as the National Secretary of the Communist Party; the deputy leader of the Black Muslims; a labor union leader who has been the favorite whipping boy of the Attorney General of the United States; and now the National Commander of the American Nazi Party. With which speaker is the University identified? Certainly not with all of them. Is not the obvious answer, "With none of them"? Was each appearance a disgrace? Would not the curious, intelligent student learn something worthwhile from the appearance of each? Would the University have brought in these people if enterprising students had not done so? Does not each of them reflect significant trends or problems in American political and social life? The faculty protest letter to which I have referred asks, in effect, "What about, prostitutes and rapists?" Well, what about them? Do such people have a public position in the sense that each of the four I have referred to does? My guess is that they do not, that they usually have no desire to appear on a platform and to be identified with their pursuits. But if, for instance, a student group could, for a price, inveigle a fallen woman to appear before them and speak about her life, I suspect it would be not only interesting but even useful. The University could, if only for the sake of the general rule, grin and bear it. 1990] FIRST AMENDMENT: EXPLORA TIONS . 1967

It is the general rule - a publicized general rule to which reference can be made when inquiries and protests come (a discreet veto cannot be kept forever discreet in an intelligent university community) - such as the rule to which the University had recourse in the Rockwell case, that gives both the University and a responsible and mature student body (which we no doubt have) more freedom and opportunity than they would otherwise have. We should remember that at about the same time that Mr. Rockwell was permitted to speak at the University of Chicago, four leading Roman Catholics were banned from participation in a lecture series arranged by student organizers at Catholic University in Washington, D.C. Catholic Uni- versity officials explained that they did not want to appear to be taking sides on vital issues dividing the recessed Second Vatican Council. iv. Some will say that the University of Chicago should "take sides" on the issue of Nazism. But others will say, with equal warmth and no doubt equal right, the University should take sides on the issue of labor racketeering, on the issue of racial demagoguery, and on the issue of Communism. I do not mean to suggest there is no ascertainable right or wrong position on any of these issues. But what the protesters do not seem to appreciate is that if the University had acted to forbid Mr. Rockwell's appearance, it would have put itself in the position of seeming to approve in some degree any future speaker who was not forbidden. Indeed, I understand there were faculty members who would have signed the anti-Rockwell protest circulated among them but for the fact that a similar protest was not offered them when the National Secretary of the Communist Party appeared on campus. Bad as some think Nazism to be or to have been, there are others who regard Communism as the greatest danger and evil confronting mankind today. Is the college student not to be directly exposed to the arguments of the believing Communist? But what, to carry this argument to the extreme, if the cost of permitting free access to the campus should include the risk of the loss of significant sums of money from supporters of our private institution? I think this risk is far less likely if the University can routinely invoke the general rule, by which it abided in the Rockwell case. But, in the extreme case, one should be willing to consider setting aside the general rule that I have defended. I have already conceded that recourse to student-invited lecturers is a valuable, but 1968 TEXAS TECH LAW REVIEW [Vol. 21:1941

not an essential, educational opportunity at the University. The endowment of a university is really essential - and in the extreme case I have just conjured up, of the prospective loss of a vital part of the total endowment, one would do well to reflect on the observation Cicero made in a letter to Atticus: [Cornelius] Dolabella, I see, by Livia's will shares a third of her estate with two others, but is asked to change his name. It is a social problem whether it is proper for a young noble to change his name under a lady's will. But we can determine that on more scientific grounds when we know to how much a third of a third amounts.28 In any event, those who appreciate the difficulties encountered the past decade by men genuinely interested in free inquiry on university campuses can also appreciate the contribution to the protection of academic freedom that Mr. Rockwell unwittingly makes.

V. There is, however, a peculiar feature to this particular case, dependent on both the recent history of the West and the special composition of our particular community. A friend of mine expressed the problem in this way: I wonder also about the mental anguish of those members of the University community who themselves - or whose loved ones - have been tormented or killed under Nazi atrocities, at having such people afforded the courtesy of the University. I wonder whether sparing them that suffering might be sufficient reason for keeping the Nazis off campus. It is well to note, first of all - and this kind of distinction can be vital - that the American Nazi was not involved in the atrocities of the European Nazi during and before the Second World War. (In fact, I believe the American Nazi Party came into existence less than ten years ago.) Indeed, Mr. Rockwell himself served in the American armed forces during that war. It is far less of a problem to exclude from the campus anyone convicted of, or clearly connected with, the commission of atrocities, murders, or any other crimes that affront decent men everywhere and do not depend on political definitions and positions for their detection. But endorsing such crimes after the fact is not the same as committing them, even if an endorsement

28. M. CICERO, LETERS TO ATicus, VII, 8. 1990] FIRST AMENDMENT: EXPLORATIONS 1969 takes the form of an implied advocacy of repetition. The significant political positions that one should take account of are, unfortunately, not merely the decent ones. What of the anguish of the survivor who is so moved by the name "Nazi" that he does not care for the distinctions I have drawn? Perhaps he should learn to care for them, at least to the extent of basing political actions and attitudes upon them in this country. That which inspires anguish differs from person to person - and we find ourselves once again threatened by the curtailment of exposure to anything really controversial: refugees from Eastern Europe find themselves tormented by the appearance of a Communist, American or otherwise; Roman Catholics find an affront in birth control advocacy; the Greeks could so little bear the thought of the Turks they had driven out that they destroyed virtually every mosque in Greece and thereby deprived themselves of the loveliest architecture built in that region of the world since the height of the Byzantine period. I do not suggest that Jews or anyone else should be complacent about any professed Nazi. But I do presume to suggest that there are better and worse ways of opposing him: resorting to an attempt at suppression and, in some places, to violence, loses more than it gains, for it concedes to the Nazi that which seems most essential to his way. Whatever the unhappy experience of Europe might mean, especially that of the Weimar Republic with its uncertain democratic tradition and its great social problems, the American Republic stands or falls on the exchange of ideas. To listen to another's ideas is not to endorse them or even to countenance them: indeed, it can best arm one to oppose the application of those ideas in one's own community. (This does not mean that a private organization such as the American Nazi Party should be permitted to collect guns, conduct military exercises or employ violence in any form against the community.) Nor do I suggest that Jews should be made to come into contact with Nazis. The presence of a Nazi on campus does not keep the scholar who finds such a man abhorrent from continuing to do what he would otherwise have done. After all, we do live in a broader community in which these people are fellow-citizens, and we continue with our activities. One feature of the special relation of the Jew to the Nazi is that Nazis can never be made to atone adequately for their crimes. Millions were murdered: the punishment of hundreds simply cannot 1970 TEXAS TECH LA W REVIEW [Vol. 21:1941 redress the balance. The more effective the prosecution case against Adolf Eichmann, for instance, the more ineffective appeared the power of the Israelis really to do anything significant about it. I believe this is reflected in the response I have encountered in sensitive Jews to the way Mr. Rockwell was received on our campus. It is my impression - I could not get into the packed meeting but rely instead on second-hand reports - that the Chicago Sun-Times headline of the following morning, "U. of C. Students Laugh at Nazi," indicates accurately the reception Mr. Rockwell received. 29 In any ordinary assessment, the speaker's mission would be considered a failure. But, some might answer, this is no ordinary case: there should have been such a reaction as would have made the mission a total failure: no laughter, no applause, no indication of any sympathy or interest. This is asking too much: no speaker with any skill or experience will be completely demolished in such circumstances. There is the risk of demanding an inhuman reaction from a sensitive audience. How, then, can I consider the speaker's mission a failure? Did he not know what the likely reaction would be? Does he not take that into account in deciding whether to seek or to accept invitations to speak on college campuses? Do I not concede an essential feature of the case of those who feel that a Nazi was permitted to exploit campus facilities and the prestige of the University of Chicago to advance his purposes, even if it is admitted that it might have been useful to establish the precedent of refusing to veto the arrangement once made? No doubt, Mr. Rockwell may think he gains more than he loses from such appearances before student audiences. But in this as in other matters, should we not rely more on our judgment than on his? I propose to turn now to a consideration of that which might be learned, as distinct from that which was gained, from the Rockwell visit.30

29. Chicago Sun-Times, Feb. 26, 1963, at 3; see also U. Chi. Maroon, Feb. 26, 1963, at 1; Chicago Tribune, Feb. 26, 1963, § 2, at 6. 30. The section of this talk that follows was anticipated in a letter I wrote to the Dean of Students on February 22, 1963, and subsequently had printed in the U. Chi. Maroon, Feb. 28, 1963. The letter reads: I have read your statement, as reported in the Maroon today, on the visit next week 1990] FIRST AMENDMENT: EXPLORATIONS 1971

Vi. I take for my point of departure two passages in the faculty letter of protest to which I have several times referred. There is the observation, No one would dare to assert on Rockwell's behalf that he is qualified to lead us in a genuine search for the truth about political matters .31 But that never was the issue. Nor was it ever the issue whether Mr. Rockwell had a right to a platform on our campus. A man holding Mr. Rockwell's doctrines can be useful to us, but not if we rely on him to lead us but rather if we, among ourselves, seize the opportunity offered us in such instances to advance "a genuine search for the truth about political matters." Is there implied in Mr. Rockwell's words and deeds anything significant for our current understanding of political matters? The faculty letter of protest suggests a partial answer: It is clear that every Nazi is an enemy of the freedom which Rockwell and those who have invited him now claim for him. He would, if he could, destroy the foundation of principles and

to our campus of George Lincoln Rockwell. [See infra note 25.] The statement strikes me as eminently sensible and in the best American tradition. Whether Mr. Rockwell or his adherents could safely or properly be permitted to speak in other countries or in other circumstances is not our immediate concern. I would qualify your statement in only one feature: it seems to me that there may be something of value to be learned from Mr. Rockwell, either from the way he presents his doctrines to contemporary audiences or from the manner in which he conducts himself on this occasion. No doubt there are students and faculty members who do not want to have anything to do with Mr. Rockwell. But I hope that those who attend his talk behave with the courtesy due any man who appears on our campus. I venture to suggest that a restrained reception would ultimately serve the best interests not only of the University but also of those who are most opposed to the movement that Mr. Rockwell represents. I write this letter in support of your excellent statement because of the opposition that the statement is likely to have aroused. I am sure you have been reminded again and again of the events of the past three or four decades - and it is good to have your reminder of something even older and much, much better. On other controversial interlopers, see G. ANASTAPLO, THE CoNsTruTIONALIST, supra note 3, at 324-330 (about a proposed visit by William Kuntsler to a college campus); Anastaplo, Human Nature and the First Amendment, 40 U. Prrr. L. REv. 660, 754-772 (1979) [hereinafter Anastaplo, Human Nature] (about a proposed march by "Nazis" in Skokie, Illinois). Consider, also, the discussion of South Africa in Anastaplo, Slavery and the Constitution:Explorations, 20 Tax. TECH L. REv. 677, 780-84 (1989) (see infra note 195). 31. See supra note 27; infra note 32. See also infra Part VII, Section iii. 1972 TEXAS TECH LA W REVIEW [Vol. 21:1941

institutions which secure these freedoms. In response to this, some say that the present and future political importance of the Amer- ican Nazi party are so slight that it represents no threat. But such a statement and prediction must be considered in light of recent history: many intelligent and well-informed observers made the same estimate and prediction about the parent Nazi Party thirty- five years ago.3 2 Let us take seriously the possibility that the American Nazi Party represents a threat to American political institutions. How might this come about? Let us assume the most serious economic and social disturbances, with the result that Nazi doctrines begin to seem attractive to the general public. The American Nazi publication, The Storm Trooper, indicates what is likely to be the nature of their appeal today: it is obviously directed to the riffraff of the community - that is, to those whom severe economic dep- rivation or social dislocation has already embittered and corrupted as well as to men who may be said to be naturally bad.33 But the support of such people is not sufficient: there must be as well the support, or at least the acquiescence, of the more respectable elements in the community - and this seems to be recognized in Mr. Rock- well's willingness, even eagerness, to risk appearances before college audiences. It is important to recognize how the doctrines presented so blatantly, with juvenile crudity and perverse tastelessness, in publications such as The Storm Trooper can be dressed up for respectable intelligent audiences. This recognition is made easier, and is more evident, when one sees the Nazi spokesman in action - and the thoughtful citizen can prepare himself accordingly. The ordinary college student today does not remember the Second World War. He has heard of Nazi atrocities, but these accounts may even defeat their purpose, for they emphasize the final stages rather than the opening ones: they concentrate upon the

32. See supra note 27. Is it suggested in.this faculty letter of protest that the campus community and Mr. Rockwell were making similar if not even identical claims with respect to freedom? If so, it merely reflects the extent to which very intelligent men can be led by the passions of the moment to subscribe to irresponsible statements. Campus opinion, as reflected in letters to the Maroon, was pretty much in opposition to the appearance of Mr. Rockwell on the University of Chicago campus. See Anastaplo, Notes, supra note 22, at 751. 33. It is said to be the "tactical philosophy" of the American Nazi Party that "The Road to the White House is Through the Prisons." The Storm Trooper, Jan.-Feb., 1963, at 8. 1990] FIRST AMENDMENT: EXPLORATIONS 1973 implausible whereas he, as citizen, will first encounter and be able to do something about the more plausible. No doubt, Mr. Rockwell does not appear as bad as the student had been led to expect, partly because his elders have failed to give Nazis credit for even the most elementary political ability. Both the student and his elders have to be reminded of the respectable facade behind which grave dangers lurk. Mr. Rockwell, properly understood, furnishes us an opportunity to see this. The evident preposterousness of even the respectable presentation Mr. Rockwell was able to muster - this, I suspect, most of the University of Chicago audience appreciated - is useful to us for still another reason. The liberal - and I am using these terms now as they are usually employed today - is reminded of what Nazism is really about and may even be corrected in whatever tendency he may have to apply loosely the epithet, "Fascist." On the other hand, the conservative is moved to separate himself firmly from tendencies that seem to identify him with the Nazis and is reminded of the forms that fanatical anti-Communism can take. Furthermore, it is also salutary that the student see occasionally just what extreme anti-Semitism can look like and to what the country-club variety tends to move. To the extent that there is a plausible argument in support of anti-Semitism, the appearance of Mr. Rockwell provides the developing citizen an opportunity to appraise the significance of that argument and to consider the best means for countering it. To do this properly, the youngster in a free community must not only have been properly brought up but must also be permitted to see some ugly things for himself.

vii. Mr. Rockwell, in his literature and on the platform, makes much of the fact that the Attorney General's list of subversive organizations does not include the American Nazi Party. 5 Should we not be moved to wonder whether the American people might not do better in such matters to insist on doing its thinking for itself rather than to rely upon the Attorney General?

34. See PLATO, REPUBLIC 537A. 35. This was evidently because the American Nazi Party was not believed by the Depart- ment of Justice to advocate revolution by force of arms in the United States. See infra text accompanying note 45. 1974 TEXAS TECH LAW REVIEW [Vol. 21:1941

I have assumed in my remarks on this occasion that, by and large, the American people can be depended on to continue to govern themselves as well as they have the past century. What is true of the people as a whole certainly applies, to at least the same degree, to 6 college students.1 Unfortunately, it has become fashionable in some quarters to disparage freedom of speech, to make much of the problems which reasonable men have always recognized go along with a free speech guarantee but which responsible men heretofore have seen fit to minimize in order to preserve the traditional respect and pride of the people for one of their most critical institutions. Should this disparagement by fearful intellectuals continue - a disparagement which is not only harmful but, it seems to me, also unjustified and based on a timid view of prudence - the quality of life in America will certainly change. We have much more to fear from this than from anything that Mr. Rockwell or any other obviously controversial guest has been given an opportunity to say or do on our campus the past eighteen months. Our best defense against those who could do us harm remains the truly cultivated human being that it is the duty 3 7 of the university to nurture. We have still another lesson to learn from Mr. Rockwell's visit. It is sometimes argued that the rights of free speech should not be extended to those whose aim is to destroy freedom. There seems, on its face, a certain justice to this proposition, assuming that the aim, the destruction of freedom, is accurately perceived. But even though the issue of Mr. Rockwell's visit to a university campus was not technically a First Amendment problem - with the special constitutional and jurisdictional problems that that would evoke - it does cast light on the validity of the proposition I have referred to. So long as those whose aim is to destroy freedom are significant in our community, we are both obliged and entitled to learn what they are saying so that we might better judge the validity or the tendency of their claims and, if need be, prepare ourselves to confront

36. See Anastaplo, The Daring of Moderation: Student Power and The Melian Dialogue, 78 ScH. REa. 451 (1970). 37. See L. Strauss, What Is Liberal Education?, Address Delivered at the Tenth Annual Graduation Exercises of the Basic Program of Liberal Education for Adults, The University of Chicago (June 6, 1959), reprinted in L. STRAUSS, LmERAssm ANCIENT AND MODERN 3-8 (1968). See also supra notes 22, 26. 1990] FIRST AMENDMENT: EXPLORATIONS 1975

them. No doubt, the motives of the speaker are not necessarily benevolent. But we should be more concerned with what he has to say and whether there is anything to it than with the question of his good will. If, in political matters, we limit our students to secondhand reports and settle for passionate denunciations, we substitute gratification for education and thereby disarm ourselves. I trust that Mr. Rockwell suffices to remind us of the danger of erecting passion into principle. I trust also that I have at least suggested the support needed for our institutions, the passion that should sustain principle.3"

III. SUBVERSION AND LEGISLATIVE INVESTIGATIONS3 9 The First Amendment issue everyone ignored [in Community Party v. Subversive Activities Control Board (1961)] - the use of Party positions on public issues as evidence of Soviet domination ... strikes me as being of major import. The government was required by the Act to show that the organization was under the control and domination of "the foreign government controlling the world communist movement." One line of proof authorized by the Act was consideration of "the extent to which its views and policies do not deviate" from those of that foreign government. In brief, the Act made official use of the logic that Senator Joseph Mc- Carthy had employed so vigorously, namely, testing the loyalty of a person by tracing the number of public issues on which his views coincide with those of the Soviet Union. In the gross form used by McCarthy it was enough to kill any position to show that the Soviets had endorsed it. Its use in the SACB case was far more circumspect and rational ... The Court thus ratified, without even seeming to be aware of it, a devastating technique for chilling discussion of public issues. It gave the Communist Party the power to capture any public issue it wished simply by em- bracing one side of it. The Government was announcing publicly

38. I later had occasion to warn against the recourse to "conspiracy" charges in the law. See Anastaplo, Human Nature supra note 30, at 688-715. Mr. Rockwell's American Nazi Party disintegrated after he was murdered by a disaffected follower. 39. This talk, originally entitled The House Committee on UnAmerican Activities: A Note of Counsel, was given at the Reynolds Club, The University of Chicago, Chicago, Illinois, May 24, 1965. The meeting was called in anticipation of hearings scheduled to be held in Chicago on May 25-27, 1965, by the UnAmerican Activities Committee of the House of Representatives. The other speakers on this occasion were Walter Johnson, Malcolm P. Sharp, Edward Shils and Frederick A. Siegler. See also infra Part VII. 1976 TEXAS TECH LA W REVIEW [Vol. 21:1941

that the way to stay out of trouble was to avoid taking the Soviet side of any public issue on which the Soviet Union had expressed an opinion. - Harry Kalven, Jr.40 The House Committee on Un-American Activities can be suspected of serving one useful purpose: its continued existence, despite all that has been shown to be wrong with it for a generation, should remind thoughtful citizens of the difficulties, perhaps even of the inevitable defect, in any constitutional system, certainly in our constitutional system. It reminds us, that is, of the limits of reason in practical affairs - of the unavoidable insatiable demands of passion and of the effects of ignorance in any constitutional dispensation . 4 The abolition of the Committee would probably be a good thing, but not if we should believe that its counterparts would not thereafter emerge to challenge us. Indeed, there may even be an advantage in allowing the present Committee to continue as a known abuse, one which we are familiar with and hence are somewhat prepared to confront, a somewhat ridiculous abuse to which members of Congress of a fearful disposition or of an uninformed character may turn for 42 reassurance or for their public service. We should be clear about what we object to in this matter. We do not object to officials talking about any allegedly subversive or criminal organizations, any more than we object to their talking about, and indeed criticizing vigorously, the Republican Party or the Democratic Party. We want officials to speak freely, and we provide them constitutional immunity and hence encouragement to do so. It is their duty as public servants to give us their opinions and to help shape ours. But, conversely, it is our right and duty to give them our opinions and to help shape theirs. What we should object to in this instance comes, for the most part, from the power the Committee has been given to subpoena witnesses for interrogation and hence for intimi-

40. H. KALVEN, JR., A WORTmY TR.ADrioN: FREEDOM OF SPEECH IN AMERICA 275-76 (1988). The case commented on here by Professor Kalven is Communist Party v. Subversive Activities Control Bd., 367 U.S. 1 (1961). 41. See infra text accompanying notes 48, 219-21. 42. Subversion has been defined as a systematic attempt to overthrow or undermine a government or political system by persons working secretly from within. The danger of subversion can seem particularly ominous to any constitutional regime defined as much as the United States has always been by dedication to a body of political principles. 1990] FIRST AMENDMENT: EXPLORATIONS 1977 dation with respect to their political beliefs and activities. In principle, this is further objectionable inasmuch as it 'issubversive of that separation of powers which is basic to our constitutional institutions. The Committee usurps, especially in its announced program of "exposure," the prerogatives of the judiciary, prerogatives that are usually hedged in by well-developed procedures and standards. It may be possible to conceive of circumstances in which the subpoena power is needed to advance a legitimate legislative function, whether of seeking information for purposes of framing legislation or of assessing the enforcement of legislation already enacted. But if information should truly be desired, it can be gotten as easily, in fact probably more easily, if informants (or, as is more likely to be the case, if the business records of informants) are accepted with the promise of anonymity. Certainly, a hostile or fearful witness is not likely to be informative. In any event, the activities of investigating committees should be carefully restricted so as to respect the consti- 4 tutional proprieties . We have instead the worst of two worlds. The proprieties are ignored as human dignity is affronted - and yet the Committee gets surprisingly little useful information from the hostile witness. For, in practice, no one need testify who does not want to. Anyone who has to be subpoenaed by a legislative committee is thereby virtually accused of misconduct - and he thereby has available to him the safeguards assured by the Fifth Amendment. He should be able to challenge as well the jurisdiction of any committee which thus usurps the function of the courts. (In some cases the rules of a committee or of a House of the Congress may be violated by a committee.) He should also be able to raise objections on the basis of the First Amendment wherever a committee, acting for the Congress, can be shown to be in effect penalizing any suspected opinions. However this may be, practically any subpoenaed witness before the Un- American Activities Committee may lawfully plead one of several privileges entitling him to remain silent. Those who do not do so are, for the most part, witnesses who are respectable - that is, witnesses who are employed by institutions which are unwilling or unable to continue to employ anyone who invokes any constitutional privilege in such circumstances. Thus, the respectable are the most

43. See Anastaplo, Due Process of Law - An Introduction, 42 U. DET. L. REV. 195 (1964) [hereinafter Anastaplo, Due Process]. 1978 TEXAS TECH LAW REVIEW [Vol. 21:1941

vulnerable - and the community at large can only be damaged by the resulting intimidation and mutual recrimination. Be that as it may, it is folly for the community to rely upon so misguided an agency as this committee to help guard the Country against any genuine threat to national security."4 What should be done? It depends on who and where you are. If one is a member of Congress, one's duty should be fairly clear. But even there, as elsewhere, circumstances, both political and personal, may determine the proper course of action. (For example, the "transfer" of function to another committee may be better than outright abolition.) It would be rash to try to prescribe one course of action for everyone. Any collective measures that are taken should recognize the limited power and prestige of the Committee and should therefore be concerned about the danger of excessive and thus self- defeating reactions to Committee activities. The measures that any particular citizen should take - and I am thinking especially of anyone who is summoned before the Committee - should be grounded on the advice that a competent lawyer would give. Such advice, too, would no doubt depend on the circumstances of the client, on his temperament, and on his purposes. My reference to lawyers should remind us of a critical problem suggested by the very existence of the Un-American Activities Com- mittee. The Committee is, despite its blatant unlawyerlike abuses, sanctioned and financed by a House of Representatives and a Con- gress made up of a majority of lawyers who, if they are representative, reflect in this respect the sad state of the American bar. This, in turn, suggests the most enduring contribution that we, as educators and as students, can make to the perpetuation of our political institutions. That is, we should remind ourselves and our fellow- citizens of the principles of our form of government. I close my statement with a letter to the editor I had occasion to publish a few years ago: The demands for Congressional investigation of the John Birch Society imply that the American people are not able to look out for themselves. What necessary information can the Congress learn for us that the newspapers have not already discovered and

44. I helped plan, while in law school, an issue of the University of Chicago Law Review which was devoted to discussions of congressional investigations. See Congressional Investi- gations, 18 U. Cm. L. REv. 421-661 (1951). 1990] FIRST AMENDMENT: EXPLORATIONS 1979

published? A people that values its freedom should be reluctant 4 to permit the government to do its thinking for it.1

IV. VIETNAM AND THE PRESUMPTION OF CITIZENSHIP 4 6 When [Abraham Lincoln] got into the House [of Representatives], being opposed to the [Mexican] war, and not being able to stop the supplies, because they had all gone forward, all he could do was to follow the lead of [Thomas] Corwin [of Ohio], and prove that the war was not begun on the right spot, and that it was unconstitutional, unnecessary, and wrong. Remember, too, that this [Lincoln] did after the war had been begun. It is one thing to be opposed to the declaration of a war, another and very different thing to take sides with the enemy against your own country after the war has been commenced. Our army was in Mexico at the time, many battles had been fought; our citizens, who were defending the honor of their country's flag, were surrounded by the daggers, the guns and the poison of the enemy. Then it was that Corwin made his speech [in the Senate] in which he declared that the American soldiers ought to be welcomed by the Mexicans with bloody hands and hospitable graves; then it was that [George] Ashmun [of Massachusetts] and Lincoln voted in the House of Representatives that the war was unconstitutional and unjust; and Ashmun's resolution, Corwin's speech, and Lin- coln's vote were sent to Mexico and read at the head of the Mexican army, to prove to them that there was a Mexican party in the Congress of the United States who were doing all in their power to aid them. [Shouts from the audience: "That's the truth," "Lincoln's a traitor," etc.] 41 - Stephen A. Douglas

45. Southern Illinoisan, Apr. 9, 1961, at 5; Chicago Pnyx, Apr. 15, 1961, at 3; Carterville Herald, May 4, 1961; see Petition for Rehearing at 35, In re Anastaplo, 368 U.S. 869 (1961). 46. This talk, originally entitled Vietnam and the First Amendment: The Presumption of Citizenship, was given at the Hillel Foundation Jewish Student Center, The University of Chicago, Chicago, Illinois, April 29, 1966. Notes 48 through 71 were prepared, for the most part, at the same time as the 1966 talk which makes up Part IV of this article. Subsequent additions to these notes should be evident, since they draw on materials published later. The 1966 text is unchanged, except perhaps for minor stylistic adjustments. But see infra note 62. (Copies of my 1966 text, which have been deposited since then in various libraries, are available.) This talk is to be included in my book, TIE AmRuIcA MORALIST. See supra note 18. 47. 3 THt COLLECTED WORKS OF ARA.tM LINCOLN 319-20 (R.P. Basler ed.) (Alton, Illinois, Oct. 15, 1858; seventh of the 1858 Lincoln-Douglas debates); see also Lincoln's Speech in the House of Representatives, Jan. 12, 1848. Id. at 1, 431-42. 1980 TEXAS TECH LAW REVIEW [Vol. 21:1941

i. To entitle this talk as I have is to assume, in a discussion of Vietnam, the approach to our subject of the American citizen. There are other approaches. There is, for instance, that of the man who considers himself a citizen of the world - that is, the man, whether artist, scientist or anthropologist, who regards as more important in determining his actions the things that make him like every other man than the things that distinguish him and his neighbors from groups of men elsewhere. Although there is about this approach something humane and highminded, the ordinary citizen remains suspicious of it. It is, in a sense, too good for this world; indeed, the citizen may even regard it, with some justice, as unwittingly destructive of the good society. Another approach is that of the religious man. He too is a citizen of the world, or of another world. His standards ultimately are not those of his political community, even when that community is a good community. He hears a distant drummer or rather, for drums sound too military, the music of the spheres: he has a divine calling or at least a divine injunction against militant actions called for by the community. He may not recognize any salvation for the soul of man in the salvation of states. Of this too the ordinary citizen remains suspicious, but his suspicion may be lulled by the sacrifices the religious man seems prepared to make in the name of a faith that the citizen also pays homage to. Still another approach is that of the philosopher. The world of which he is a citizen can be said to be within him; he has no need, as philosopher, for the impermanent and even fortuitous institutions all around him. This is the most harmless and yet the most dangerous of men: he poses no threat to anyone, and yet his way of life, his questioning of everything if only for the sake of his own understanding, and his turning away from the things other men cherish threaten everything that other men (whether citizens, cosmopolites or the religious) hold dear. Let us put these three men to one side, at least for the moment. It is as American citizens that I propose we discuss this matter with one another. We must remind ourselves of the scope and purpose of the First Amendment: it provides for the unlimited discussion of public matters, protecting such discussion by the sovereign American citizen-body from any interference by the Government of the United States. Only in this way can we begin to rule ourselves. 1990] FIRST AMENDMENT: EXPLORATIONS 1981

ii. The remarkable thing about current discussions of the Vietnam War is the extent to which the constitutional protection of freedom of speech is being respected. It is my impression that practically everything is being said about the war that anyone should want to say. Governmental sanctions are not being imposed. Even social sanctions have had little effect. The war is being questioned on all fronts. This is particularly remarkable for anyone who remembers the circumstances of the Korean War. There was then far less significant dissent than we have today; there were then prosecutions, both of the Communist Party leaders and of alleged spies, that we do not have today. A number of factors account for this healthy difference. This war has come on slowly for Americans, not overnight as did the Korean War. The press has been able to watch closely as the conflict developed. Perhaps too there are men in responsible positions, both in government and out, who do not want to be trapped again in the kind of destructive repression to which we were subjected last time. Related to this is the attitude of the young, for they have been in large part responsible for bringing the issue to a head in this country: youngsters are dubious, and I believe rightly so, about the conduct of their elders during "the McCarthy period." It is important as well that the dissenters this time are able to use persuasive denunciations of the war made not too long ago by prominent members of the American government. Nor does the current Admin- istration position have the sanction of the United Nations that our Korean police action did. For a number of reasons, therefore, there does not happen to be an authoritative American pro-war position 48 against which it is unpatriotic to speak out.

48. Three observations by President Johnson during the 1964 presidential election campaign come to mind: [1] Some others are eager to enlarge the conflict. They call upon us to supply American boys to do the job that Asian boys should do. They ask us to take reckless action which might risk the lives of millions and engulf much of Asia and certainly threaten the peace of the entire world. Moreover, such action would offer no solution at all to the real problem of Viet Nam. [August 12, 1964] [2] There are those that say you ought to go North and drop bombs, to try to wipe out the supply lines. We don't want our American boys to do the fighting for Asian boys. We don't want to get involved in a nation with 700,000,000 people and get tied down in a land war in Asia. [September 25, 1964] 1982 TEXAS TECH LAW REVIEW [Vol. 21:1941

This freedom of speech, I have suggested, conforms to American constitutional principles. How are we to choose among our candidates for public office, and by implication among policies to be followed, if we cannot discuss fully the broad issues on which public officials have to pass judgment? How can we assess a candidate, except on the basis of an illusory "personality" or "public image," if we cannot address ourselves to the very issues that that man will have to consider once in office? To rule ourselves must mean this if it means anything. But is it merely a pretense that we rule ourselves? It is this question I should like to consider here. I have no objection to the scope of discussion available to us about this war, however much I may differ about the judgment and style of some of those who exercise this freedom. Anyone seriously interested in freedom of speech must wonder whether it can withstand the most serious threat it faces: not the threat of government interference nor the occasional misuse of that freedom, but rather the threat that is posed to any institution whenever it does not do what it is intended to do. Further questions suggest themselves: Are citizens able to speak and listen to one another in a manner likely to elicit sensible decisions about war and peace? To what extent do men in office in Washington or elsewhere possess information, abilities and experience that make it likely that their judgment is clearly superior to our judgment as citizens? That is, is it prudent for us to exercise our freedom of speech by addressing such matters?

[3] But we are not about to send American boys 9,000 or 10,000 miles away from home to do what Asian boys ought to be doing for themselves. [October 21, 1964] See Wise, In Johnson's Own Words: The Anatomy of Escalation, Chicago Sun-Times, Mar. 20, 1966, at 6. The 1950 United Nations action in Korea could reasonably be seen in its inception as a contribution to establishment of the rule of law in international relations. Had I been recalled to active duty at that time - I was then still a flying officer in the Air Force Reserve - I would not have regarded such service as improper. See infra text accompanying note 190; see also infra note 66 (quotations from Clement Attlee and Woodrow Wyatt). Our serious mistake in Korea resulted from the failure to recognize when we had achieved our legitimate objective: this was to compel the original invaders, the North Koreans, to return to where they had come from. Not only should Vietnam be distinguished from Korea; it should also be distinguished from Iran. My old law school teacher, Malcolm P. Sharp, long regarded Iran as a potential Sarajevo. See, e.g., Janeway, Iran hurting us more than Vietnam Could, Chicago Tribune, Mar. 6, 1979, § 4, at 8. On Mr. Sharp, who died in 1980, see Anastaplo, Malcolm P. Sharp and the Spirit of '76, U. Cm. L. ALummI J., Summer 1976, at 18; infra notes 103, 145. 1990] FIRST AMENDMENT: EXPLORATIONS 1983

A consideration of the discussion by Americans of the Vietnam War provides us an opportunity to assess, at a time when many feel they are powerless to control their lives, the possibilities of self- government.

il. The most obvious limitation to which the citizen is subject is that of lack of access to information that is routinely made available to government officials. Reports come in daily to the State Depart- ment and the Pentagon that are not available to the general public. One can wonder, however, whether anything essential not itself originated by the press is included in such reports with respect to politics and international relations which does not find its way into the press within a few weeks, if not within a few days. Sometimes, of course, an alert press discerns long-run developments before members of our government do. Nor does the government always exploit whatever advantage there may be in learning before the citizen does what is daily happening abroad. Consider, for instance, the implications of this exchange at the presidential press conference reported on April 1: Q. I wonder, sir, if you can give us your views and comment on the current domestic political trouble in South Viet-Nam, and specifically, if there should be a change in government? What effect might this have on the war? A. [by President Johnson] I would answer all your question[s] in one sentence, that there is not any information that I could give you that would add to what you have read in the papers. I think that there is very adequate free flow of information out there, and everything that is reported to this Government in that field is pretty well known to you either simultaneously, by the time I 49 get it, or maybe sometimes a little ahead of me. It is when we turn to military matters that we may expect to find significant gaps in the public's knowledge. But consider the situation as it existed in 1961, only five years ago: Mr. Salinger [President Kennedy's press secretary] said that, as a test, a committee recently had been assigned the task of developing estimates of the nation's military strength, policy and capability, using only materials available to the public. "Their estimate was

49. N.Y. Times, Apr. 1, 1966, at 18. 1984 TEXAS TECH LAW REVIEW [Vol. 21:1941

almost totally accurate," Mr. Salinger said. "And I believe this indicates we have been going too far in discussing matters affecting 50 the national security." Such official misapprehensions as the 1960 "missile gap" also should make us wonder how much conjecture there is on the part of men whose official analyses are popularly respected as factual reports rather than as the guesses they sometimes have to be. I have had occasion to advise students, in an effort to induce them to look beyond the ever-engaging present, that if they really want to understand what is happening around them, they should read relatively little of anything written after 1900. I believe there is enough truth in this to permit the properly concerned American citizen today to become as well-informed as the highest office holder on the principal issues confronting the country. Someone has to make decisions from day to day, and from this a familiarity with problems does develop. But it seems to me unlikely that men in office are necessarily better informed than we citizens can be about the long- run problems and opportunities confronting the country. This may be confirmed by reading Presidential memoirs and the accounts of men close to the powerful. Rarely does one come upon revelations of significance. After all, our politicians, when hard- pressed, usually reveal the facts and make public the arguments that they believe might support their decisions. One is often surprised

50. N.Y. Times, Jan. 26, 1961, at 11. This quotation is taken from an article which begins, "The White House commended The New York Herald-Tribune tonight for foregoing a nineteen-hour news 'beat' on Moscow's freeing of two American fliers." Id. The fliers had been shot down in an RB-47 reconnaissance plane over the Barents Sea and held prisoner since July 1, 1960. The newspaper had foregone its news "beat" after it had been told by Mr. Salinger that "the release of this information would be harmful to the national interest and inimical to the welfare of the fliers." See ANASTAPLO, TrE CONSTrnONALIST, supra note 3, at 741-42. All this, it seems to me, bears upon how one might begin to think about the controversy as to whether the United States should have been able in 1979 to prevent the Progressive magazine from publishing an article entitled, The H-Bomb Secret: How we Got It, Why We Got It, Why We're Telling It. See J. Kilpatrick, The press nukes itself, Chicago Sun-Times, Mar. 16, 1979, at 50; The free press and the Bomb, Chicago Tribune, Mar. 16, 1979, § 2, at 2 (editorial); see also United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979), dismissed, 610 F.2d 819 (7th Cir. 1979); G. GUNTHER, CONSTrrnoNAL LAw 1426-27 (lth ed. 1985). Cf. Anastaplo, The Occasions of Freedom of Speech, 5 POL. Sci. R ., 401, n. 25 (1975) [hereinafter Anastaplo, Occasions]; Bacon, Pentagon Studies How Boeing Got Secret Information, Wall Street Journal, Mar. 1, 1979, at 1. On "the freedom of Americans to engage in political discussion of the most radical kind," see ANASTAPLO, THE Co sTrruroN- ALIST, supra note 3, at 124 (emphasis added)). 1990] FIRST AMENDMENT: EXPLORATIONS 1985 upon reading memoirs to learn how frivolous and distorted were the "facts" and the opinions about alternatives on which Presidential deliberations depended. This is as true of descriptions of events a decade ago as of those a century ago. One does pick up in such accounts interesting anecdotes, but usually not much else that could not have been known to a thoughtful observer on the "outside." Thus, the best of Lincoln's thought and why he acted as he did are to be found in his public speeches, not in gossip from the White House.5" The most obvious, and sometimes the most significant, facts frequently escape the notice of the busy, practical politician. In preparing this talk, I have read a number of things about Vietnam. Perhaps the most revealing item I have come across, an item that I had not seen mentioned or taken into account by public officials or for that matter by the press, is the abdication proclamation of August 1945 by the Emperor Bao Dai. I find particularly significant in this statement by a man generally dismissed as a "playboy" the first of "three wishes" he expressed to "the democratic Republican Govern- ment" of Ho Chi Minh: "We request that the new Government take

51. See, e.g., the discussion in President Eisenhower's 1963 memoirs of his decision in 1953 not to interfere with the execution of Julius and Ethel Rosenberg. See also ANASTAPLO, THE CONSTIUTIUONALIST, supra note 3, at 634-35; infra Part VII, Section iv. Consider, as another illustration of how distorted some presidential judgment can be: Inflation is the final act of the Viet Nam War. Between 1965 and 1967, President Johnson waged the Viet Nam War and the Great Society at the same time. Spending on both increased by $22 billion in one year. But Johnson did not ask for a tax increase to finance this, apparently because he feared Congress would rather cut the Great Society than raise taxes. Instead, government deficits grew. The Federal Reserve. System created money to pay for the essentially nonproductive war - a classic cause of inflation. It was 1968 before Congress finally passed a 10 per cent tax surcharge - too little and too late to halt the inflation that is still with us. Chicago Tribune, Nov. 16, 1978, § 1, at 12. Consider, also, the following observation: When I try to see vividly what distinguishes wisdom from cleverness, I think of [Kurt] Riezler. His political judgment was not misguided by passion or by system or by prejudice: in the few cases where I believed at the time he was wrong, his judgment was vindicated by what happened or what transpired afterwards. All important points which were made after the Second World War on the basis of more or less secret information by Chester Wilmot, were made during that war on the basis of information accessible to everyone by Riezler. L. STRAUSS, WHAT Is PoLiTicAL PmLosopHy? 234-35 (1959); see ANASTAPLO, THE CoNsTrru- TIONALIST, supra note 3, at 755; see also infra note 58. 1986 TEXAS TECH LAW REVIEW [Vol. 21:1941 care of the dynastic temples and royal tombs." 5 2 To speak thus of the tombs of one's ancestors reveals, among those to whom he addressed himself and perhaps even in this man of the world, old- fashioned concerns that are concealed but not obliterated by either modern materialism or decadent sophistication. I am reminded of Rabbi Maurice Pekarsky's characterization of one of the students he encountered here at Hillel House as "an atheist with a good Jewish heart." One must look to what is deep within the soul of a man or of a people if one is to understand what is going on there. I am also reminded of what one reads in accounts of the ancient Greek city about the opinions among those people about the ancestral, about the city, and about one's own.5" From such people one can expect deep-rooted resentment of any domination by foreigners: for better or for worse, blood will mean more to them than ideology.

52. VEET NAm: HISTORY, DOCUmENTS, AND OPINIONS ON A MAOR WORLD CISIS 60 (M. Gettleman ed. 1965). The passage in which the "three wishes" of Bao Dai are found reads: In view of the powerful democratic spirit growing in the north of our kingdom, we feared that conflict between north and south would be inevitable if we were to wait for a National Congress to decide us, and we know that this conflict, if it occurred, would plunge our people into suffering and would play the game of the invaders. We cannot but have a certain feeling of melancholy upon thinking of our glorious ancestors who fought without respite for 400 years to aggrandize our country from Thuan Hoa to Hatien. Despite this, and strong in our convictions, we have decided to abdicate and we transfer power to the democratic Republican Government. Upon leaving our throne, we have only three wishes to express: 1. We request that the new Government take care of the dynastic temples and royal tombs. 2. We request the new Government to deal fraternally with all the parties and groups which have fought for the independence of'our country even though they have not closely followed the popular movement; to do this in order to give them the opportunity to participate in the reconstruction of the country and to demonstrate that the new regime is built upon the absolute union of the entire population. 3. We invite all parties and groups, all classes of society, as well as the royal family, to solidarize in unreserved support of the democratic government with a view to consolidating the national independence. Id. 53. See, e.g., AEsCn'rLus, Tn OnsTEA; SOPHOCLES, ANTIooNE; FUSTEL DE COULAcas, THE ANCIENT CITY; see also in Plutarch, the lives of Lycurgus, Theseus and Numa. The reference to Rabbi Pekarsky reflects the fact that the 1966 talk which makes up Part IV of this article was given at the Hillel Foundation Jewish Student Center, The University of Chicago. On Rabbi Pekarsky, see Anastaplo, American Constitutionalism and the Virtue of Prudence, in ABRAAM LiNCOLN, THE GETTYsBURo ADDRESS AND AMEmCAN CoNsTnrrnON- ALISM 169-70 (L. P. de Alvarez ed. 1976) [hereinafter Anastaplo, American Constitutionalism]. 1990] FIRST AMENDMENT: EXPLORATIONS 1987

The recent anti-American agitations in South Vietnam should not surprise us. We can expect them to get worse until those people come to believe that they really run their own affairs. This they will not believe until they have ordered the Westerner out so as to be able thereafter to invite him back at will.

iv. The concerned citizen need not suffer from a lack of information about the enduring problems that confront the country. He may even be in a better position than the public servant to face up to such problems. This depends in part on the relative capacity of citizen and public servant. This in turn depends on the native ability and the daily life of each. The life of the public servant gives him ready access to information and makes it his duty to be interested in the problems of the community. But he cannot pick and choose his problems: they are chosen by circumstances, and the higher up he is the more dependent on circumstance is his schedule likely to be. We all know this is true of the President: he literally does not have time to think for himself. This is what comes from having to make decisions about all kinds of problems. If one issue should engage a "disproportionate" part of his attention, other issues must be let slide. Can he know then as much about a critical issue as the public-minded citizen who devotes himself to the subject he is most concerned with? Take the case of the Secretary of State, the man officially charged with doing the President's thinking, or at least with keeping track of developments, in international relations. President Eisen- hower's Secretary of State, Mr. Dulles, evidently spent most of his official career travelling all over the world. If he knew much about world affairs (the basis on which such men presumably are chosen), he had to learn about them before he entered government service. On the other hand, President Johnson's Secretary of State, Mr. Rusk, travels much less, but if his weary estimate is to be trusted he spends most of his time reading the cables and reports that pour 4 into the State Department.1

54. Mr. Rusk estimated he read "about 2,000 incoming and outgoing cables a day." NEWSWEEK, Feb. 7, 1966, at 18-19. Even if he read several cables per minute, he literally would not have had any time left to think. Cf. PLATO, REPUBLIC 345E-347E. 1988 TEXAS TECH LA W REVIEW [Vol. 21:1941

The life of the public servant inhibits his intellectual development in still another way: he cannot think for himself because he is obliged to spend so much of his time saying what he is supposed to say. Disappointed admirers fault Mr. Johnson's Vice-President on this count. It is a rare man who, day in and day out, year in and year out, can continue to think his own thoughts even as he says only what is expected of him. He comes to believe what he says." Indeed, it often becomes impossible for him to talk as if he is not in public: the more intelligent and conscientious he is, the more apt he is to mold everything, including even his dinner-party conversation, to his political life. This is obvious with respect to style. It is likely as well with respect to ideas; few politicians in America have been able during the past two decades to think sensibly about Communism, and Vietnam merely reflects this inability. The distinctions among Com- munist regimes and their capacity for change, for instance, are too often lost upon them. Few of them seem to be considering seriously the tendency our attacks upon North Vietnam may have to drive the Vietnamese into the arms of their traditional Chinese enemies. Nor can any respectable American politician acknowledge that for some peoples in the world a Communist regime may be better than the alternatives available to them. It is even more difficult for a politician either to perceive or to acknowledge that the fundamental problem facing our country and indeed the world may not be that of Com- munism, but rather that to which both Communism and Nazism have gropingly addressed themselves, the emptiness of a life that is dominated by a worldwide technology dedicated to consumption, a life that is alienated from nature and from meaningful participation in the life of one's community. What one cannot suggest, or hear suggested, one does not think about. I have been talking about the life of the public servant as it bears on his capacity. But that life bears upon his native ability as well. The best of men will not submit, except in the most extreme or the most favorable circumstance, to the imprisonment of the human soul that I have been describing. The better the man, the more he wants to be free and is equipped to be free; this freedom is best found in the full development and use of his mind. It is not

55. See PLATO, REPUBLIC 415C-D. 1990] FIRST AMENDMENT EXPLORATIONS 1989 found "where the action is," as President Kennedy thought. I have no doubt that the intelligent, hard-working men who serve as corporation executives earn everything they make; indeed, they do not seem to me to earn enough. They are where the action is, but they are devoting to such action - action which is generously rewarded by the rest of us because it contributes so much to our material well- being - the only life they will ever have, at least here on earth. High public office is much the same. It is truly a sacrifice, although the men who devote themselves to it do not usually see it as that, whatever they may say. It is a better life than most men do lead, but it is not the best that a man can lead. This is especially true in an age when the public man is confined as much as he is by the schedule I have described. Consider the modern institution of the ghostwriter. The Sorensen book on John F. Kennedy provides an intimate portrait of the relations between speech-writer and speech- giver: both are prisoners, neither is master. The writer tries to give his employer a speech that the writer believes expresses the speaker's sentiments. We are told that Mr. Kennedy always went carefully over the text of important speeches. But this is quite different from writing a speech oneself: as one writes, and rewrites, one discovers what the problems really are; one learns - as one works through one's ideas, discarding some, revising others - what can and cannot be said about a subject. The thoughtful man undergoes priceless education in the very process of developing and clarifying his thoughts on a question, whether in preparing a speech or in making a decision. But, Mr. Sorensen explains, it is impossible today for any president, or for that matter any presidential candidate, to write even his most important speeches. That may well be true in the United States. But that only means that we can expect to have from now on only second-rate men in the presidency. They will be second-rate not because of any native incapacity, but because they will not have, once in office, either the time for or the experience of working through their thoughts on the vital issues of their administrations. In such circumstances, it becomes even more important to allow and depend on men outside everyday politics to do the thinking that the 5 6 public servant is no longer capable of doing for himself.

56. See T. SORENSEN, KENNEDY 59-65 (1965). The most curious passage in Mr. Sorensen's book may be the report of the exchange 1990 TEXAS TECH LAW REVIEW [Vol. 21:1941

The man of capacity who recognizes all this becomes reluctant to enter political life; he knows he cannot do his best in such circumstances, even if he should be assured that he will not be punished for doing as well as he can.

V. Whatever the information and native abilities of our public servants, do not they have access to something the public does not have, the benefits of experience dealing with affairs of state? The doctor and the shoemaker have experiences that no doubt make them superior with respect to their arts. Why not the politician as well? There is, however, one critical difference that should be noticed: we too are political men, since we as citizens are in a sense and to some degree the sovereign body in our regime. We are habituated to thinking about and making choices respecting political questions; the nature of our regime is such that this activity becomes second nature to us. The arts of medicine and even of shoemaking are constantly subject to modification that only the technician can keep up with. That does not seem to be the case with the political art. Rather, a people may take its bearings by old teachings that define its way of life. The exceptional man makes his mark on political affairs whether in office or out; he does not depend merely on experience in office,

President-elect Kennedy and he had in the course of their preparation of the Inaugural Address: He asked me to read all the past Inaugural Addresses (which I discovered to be a largely undistinguished lot, with some of the best eloquence emanating from some of our worst Presidents). He asked me to study the secret of Lincoln's Gettysburg Address (my conclusion, which his Inaugural applied, was that Lincoln never used a two-or-three syllable word where a one-syllable word would do, and he never used two or three words where one word would do). Id. at 240 (emphasis added). On the Gettysburg Address, see generally the essays collected in ABRAHAM LINcoLN, THE GEarsBauG ADDRESS AND AmlmcAN CoNsrtrrioNA IsM (L.P. de Alvarez ed. 1976) as well as the work of Harry V. Jaffa. Consider also this comment on Nelson Mandela's recent visit to the United States: His formality, precision, and seriousness reveal just how much we as a nation have come to regard politics as a form - a vulgar, usually boring form - of entertain- ment. This is particularly true with respect to television, where style so famously overhelms content. The crushing importance of television to politics has been an inescapable fact of life for decades now. But Mr. Mandela spent those decades in prison. He travels the world today as perhaps the, last, major pre-television politician. "The Talk of the Town," New Yorker, July 9, 1990, p. 25. It is also worthy of note by observers that Mr. Mandela "writes his own speeches" and that he "spoke without notes." Id. at 25, 26. See infra note 177. One can notice these things without endorsing- a1 of his sentiments. 1990] FIRST AMENDMENT: EXPLORATIONS 1991 which is often no more than gradual addiction to day-to-day drudg- ery, to guide his understanding of the most important affairs of his era. It is well to remember that for every "triumph" scored by a man in public office, there is usually a "defeat" suffered by-another man in public office, either in the same country or abroad. Many more horses gain experience losing races than winning them. When one looks at five American crises in recent years, one sees judgments by experienced men that seem dubious in retrospect, various of which judgments seemed dubious to some of us at the time. I confine myself to recent years so as to be able to refer to what has been experienced by all of us here tonight. First, I call to mind the Bay of Pigs invasion of 1961, the account of which Mr. Sorensen concludes by reporting President Kennedy asking himself out loud: How could I have been so far off base? All my life I've known better than to depend on the experts. How could I have been so stupid, to let them go ahead?"7 The explanation usually given for this unfortunate episode is that the President, in his first few months in office, was inexperienced. But what he had already experienced, and hence was so painfully reminded of, with respect to experienced experts itself raises doubts about the value of mere experience. We move then to what is considered a triumph of that President, his handling of the Cuban Missile Crisis of 1962. The Sorensen account makes exciting reading. I confess that I was surprised by the emphasis placed in this and other accounts on the nearness to world war that the men close to the President regarded this crisis to have taken us. If things were as dangerous as they subsequently reported them to have been, then their attitude during the crisis was most imprudent.18 My own impression at the time was, and still is,

57. SORENSEN, supra note 56, at 309; see also A. SCHLESINGER, JR., A THOUSAND DAYS: Jom.N F. KENNEDY IN THE WITE House 352 (1965): As they prepared to break up, de Gaulle paused, charmingly cited the prerogatives of age and ventured to suggest that the President not pay too much attention to his advisers or give too much respect to the policies he had inherited. In the last analysis, the General said, what counted for every man was himself and his own judgment. He was expounding, of course, the Gaullist philosophy of leadership. His counsel, after the Bay of Pigs, fell on receptive ears. 58. See ANASTAPLO, HUMAN BEING AND CrrIZEN, supra note 5, at 57-58, 256-57 nn. 44- 46. Was there an attempt on this occasion to regain prestige lost in the Bay of Pigs? Cf. 1992 TEXAS TECH LA W REVIEW [Vol. 21:1941 that there was no serious danger we could not control. There was exhibited in the crisis even a taste for dramatics, not without pre- dictable effect on the then-impending congressional elections.5 9 In any event, we confidently counted on a return to prudence by the presumptuous Russians. The peculiar unreality of the Cuban Missile Crisis is suggested by the fact that the Russians now have Polaris- type submarines, some of them evidently parked off our coasts, with much more destructive missile power than was ever in Cuba. 6° Such

SORENSEN, supra note 56, at 696 n.3. Of course, one must recognize that "insiders" do come to believe they have special insights as well as special obligations and opportunities. Consider, for example, this report: [Vice-President] Mondale spent a dozen years in the Senate, often as a critic of the White House. Now that he sees things from the inside, "I see how tough things really are. They are tougher than they look from Congress." Chicago Tribune, Mar. 16, 1979, § 1, at 4. But "tougher" in what way? Is it tougher to understand what is going on or is it "only" tougher to reconcile more diverse interests than a senator is obliged to try to reconcile? Thus, this Tribune account continues, With the polls down sharply, Mondale is far from abandoning ship or trying to build support or a constituency for himself, he says. . . . He admits that sometimes the polls "get to me," but he is becoming philosophical as his hair gets grayer. "Once you've worked a 16-hour day and done that month after month and done your best and the polls are still down, you might just as well accept it. The other strategy is to go nuts, and there's no point to that." As to what the "best" is, see Anastaplo, American Constitutionalism, supra note 53, at 99- 101, 150-151. 59. One finds in the accounts of the Kennedy Administration a tendency on the part of participants to overdramatize themselves. Thus, Mr. Schlesinger describes the assumption of power: One could not deny a sense of New Frontier autointoxication; one felt it oneself. The pleasures of power, so long untasted, were now being happily devoured - the chauffeur-driven limousines, the special telephones, the top secret documents, the personal aides, the meetings in the Cabinet Room, the calls from the President. Scm.LESNGR, supra note 57, at 213. One sometimes feels that they regarded it all as a kind of game, perhaps even as the political equivalent of the mock combat of touch football. 60. Consider, for the kind of information about deployment of missiles available to the general public when I gave in 1966 the talk which makes up Part IV of this article, the following United Press International report: The Soviets now have on station at all times at least one nuclear-powered missile submarine in the Atlantic and another in the Pacific. They are deployed in areas from which they could zero in on launch positions off the U. S. coasts in two or three days .... The Russians thus could try to counter U.S. Polaris submarines now stationed in the Atlantic, Mediterranean and Pacific within easy reach of Soviet and Red Chinese targets. This, in effect, could redress the military balance in a way the Soviets failed to do with their missiles in Cuba in 1962. . . . The information available indicates the 45 nuclear and diesel submarines armed with ballistic missiles have a total of 120 launchers. These apparently give the Soviets a potential rocket-firing capability near the American coasts about triple the number 1990] FIRST AMENDMENT: EXPLORATIONS 1993

submarines, we were promised when money was being requested for the development of our own, are far less subject to destruction than land-based missile sites. The missiles are back, perhaps no further away and far more difficult to deal with than those in Cuba were, and yet we somehow live with them. I do not suggest that we should not have made serious efforts to see nuclear weapons removed from Cuba; but I do suggest that if we, by insisting on an immediate capitulation by the Russians, risked a world war to get the missiles out of Cuba, we acted neither in our interest nor in accordance with the dictates of that humanity of which our enormous power obliges us to be the principal guardians. Our self-righteousness was apparent even at that time: we had long insisted that our intercontinental missiles and aircraft, whether here or on the edge of the Russian empire, were essentially defensive in character; but when a country recently invaded under our auspices installed similar equipment, we failed to appreciate that they could have felt as we did about self- defense. Even the inexperienced observer can, without becoming unpatriotic, see the difficulty in such recourse to a double standard by his country's leaders. My central illustrative crisis I touch upon only briefly, leaving you to develop its implications: that is the assassination of President Kennedy. This illustrates among other things the limits of experience and the role of chance in political affairs. What is the significance, furthermore, of the fact that so much energy and money have to be expended upon the protection of our presidents? What does it suggest about the nature and problems of a community such as ours? To what extent is the United States truly a community?

of missiles delivered in Cuba. . . . It is calculated that with its existing fleet, Russia could maintain 10 nuclear submarines continuously off the Atlantic and Pacific coasts with enough rockets to kill 15,000,000 people. If they brought up all their missile-firing subs for a one-shot operation - a most unlikely prospect - they could kill 50,000,000. Chicago Sun-Times, Mar. 20, 1966, at 8. Many accounts are available which bring this kind of information up-to-date, such as President Carter's 1979 State of the Union Address. See Missile Submarines and National Security, Sci. AM., June 1972, at 15. The United States has issued three "nuclear alerts": " The first time was during the Berlin Blockade in 1948, the second during the Cuban missile crisis in 1962, and the third during the Yom Kippur War in 1973. It has never occurred to the average American that the next nuclear alert could very well be the Soviet Union's. What would we do?" W. F. Buckley, Jr., Chicago Sun-Times, Mar. 8, 1979, at 60. For a preliminary attempt to assess what our-nuclear policy should be, see Anastaplo, Book Review, Chicago Sun-Times, Book Week, June 26, .1977, at 8 (reviewing S. LENS, THE DAY BEFoaE DOOMSDAY (1977)). 1994 TEXAS TECH LA W REVIEW [Vol. 21:1941

Last year's Dominican crisis has been too well exposed to require much discussion at this time. One can wonder whether public servants who can become so confused about the nature of the Communist threat only a few miles from us can be relied upon to understand it on the other side of the world. To what extent does our inability to think clearly about Communism abroad reflect our naivete since the Second World War about the danger of Communism in this country? Finally in this catalogue of five crises that permit us to raise doubts about the necessary superiority of the judgment of experienced men, we have our current engagement in Vietnam. We would feel more confident about the understanding, to say nothing of the purposes, of the officials involved if their publicly-expressed expectations of the past five years had been more often borne out by subsequent events. Defense Secretary McNamara's unfortunate predictions most readily come to mind. Even more telling is the recognition that we have in the past year alone done much more to North Vietnam than was called for by Senator Goldwater during his 1964 presidential campaign. Indeed, we have already done much more than we were ever led to expect would be necessary to get "the enemy" to surrender, let alone to the conference table. True, we do not yet bomb population centers, but this seems to be because we believe that that would lose us much more in the eyes of world opinion than it would gain us in Vietnam. It would deprive us, as well, of the feeling that there is still something more we could do to gain a relatively cheap victory in Vietnam. I venture to make a prediction based on little more than that prudence which is derived from watching one hopeful prediction after another fail: if we insist upon the objectives we now pursue, modest as they seem, we will have on our hands not a world war but a war comparable to Korea; we can then hope we have a moderate Republican president elected in 1972 to deal with the immoderate Stalinist succession to Mao Tse- tung firmly entrenched in Peking, to say nothing of Hanoi; we will also remember nostalgically how freely we talked about these matters back in 1966. I I do not mean to dismiss experience, but merely to put it in its proper place. The fact of the matter is that mere experience does not suffice: choices still have to be made among the positions contended for by various men of experience. We must not forget that however unanimous our public men of experience sometimes seem with respect to a particular issue, there are many men of experience elsewhere who are skeptical. I refer not only to experienced 1990] FIRST AMENDMENT: EXPLORATIONS 1995

men out of office in this country, but also to experienced men in office abroad. Thus in this instance of Vietnam, there are the French, with their bitter experience in Southeast Asia, who insist that we are pursuing the wrong course; there are the British who have just gone through a national election in which Vietnam seemed so insignificant to their interests as to play hardly any part; and there are our non- Vietnamese "allies" in Southeast Asia who do no more than offer token forces in support of a war that we proclaim to be essential to the defense of freedom in their part of the world. There is also what the Chinese and the Russians are saying, to say nothing of the North Vietnamese, but we evidently do not regard what they say with any more seriousness than we expect them to regard what we say. It is when he looks at what is said and done throughout the world, at what is known by all to be said and done, that the man with common sense can ask questions that do not require special talents or secret information to answer sensibly: Why were General MacArthur and his experienced colleagues mistaken, if they were, in their insistence that it would be folly for the United States to commit troops to another land war on the mainland of Asia? Why, if the President knows more than the intelligent and thoughtful citizen about such matters, was a dramatic change in Vietnam policy required in 1965, a change that repudiated the conclusions announced the year before on essentially the same facts? Is French prestige higher or lower since France had to leave Indochina and Algeria? I have suggested that the "inexperienced" citizen is not as inadequately prepared to think about public affairs as might be thought. Indeed, there is one way in which he might be decidedly superior to the public servant, and that is in the moral sense which he is in a position to express. There is about a moral sense something naive, a naivete which the community as a whole, as distinguished from the more successful and hence more sophisticated, tends to preserve. The healthy community may become impassioned and hence foolish, but it is apt to remain good-intentioned. I suspect that it is the general ethical assessment of this perhaps unconstitutional and certainly unnecessary war that is at the bottom of a national discon- tent that! will not go away. Consider the moral judgments to be made. The Secretary of State observed that the North Vietnamese have discovered that they are not going to be permitted to send tens of thousands of people into the south to attack South Viet 1996 TEXAS TECH LA W REVIEW [Vol. 21:1941

Nam and live in safety and comfort there in the north. The idea of a sanctuary is dead as far as this situation is concerned, and that is something that all of the others who may be supporting 6 Hanoi must take fully into account. ' This observation needs revision: "the idea of a sanctuary" is dead only for our adversaries, "as far as this situation is concerned," since it remains quite a lively idea for us. We send out air strikes from sanctuaries on aircraft carriers and troops from that sanctuary of sanctuaries, the Great Society where "safety and comfort" abound. Obviously, Mr. Rusk does not recognize what he is saying. But if one does not recognize what one is saying, that suggests that one does not recognize what one is doing either. One difficulty with the moral sense of many public men (and the President is, to say the least, typical in this respect) is that it may be blunted by their craving for success, for public approval, for honor. The very desire for honor reflects a need for reassurance of one's virtue, a reassurance that is vital for one who cannot rely upon his own standards for self-appraisal. Men with such appetites are apt to make the sacrifices they regard as useful to secure public approval. The President is, indeed, a case in point. (I can say this with a certain proprietary interest, since I may be the only one in this hall tonight who is recorded to have thought before 1960 that Lyndon Johnson could make a good president. I still think so, especially if he can be restricted to, and checked by, the domestic politics he knows so well. 62) His concern with public opinion polls; his lack of inhibitions where publicity is available; his inability to allow others a share of the limelight, except where it serves his purposes; his temper tantrums, which make one wonder about the caliber of the men who can stay close to him - all this reveals a childishness that is a serious flaw in a man of great talents. I suspect that this may have been the flaw that induced him to gamble away the opportunity to settle the Vietnam War without further American intervention, the opportunity provided him by the overwhelming election mandate for which he had asked in 1964. He tried, that is, to exercise even more control over the situation than he could have had easily for

61. Chicago Tribune, Apr. 27, 1966, at I. Precisely when, and in what circumstances, did large-scale movements of "tens of thousands of people into the south" begin? Were our military responses proportionate to the challenges we discerned? That is, who was really responsible for the escalation in Vietnam? 62. This sentence has been added since 1966 to make explicit what I believe I meant then. See infra Part V. 1990] FIRST AMENDMENT: EXPLORATIONS 1997 the taking. He tried, in an effort to win even more public approval ("consensus") than circumstances permitted, to satisfy doves and hawks alike - the hawks by a sudden display of force, the doves by securing peace - with the result that he has gotten into trouble with both flocks and has lost the fleeting opportunity with which he had been entrusted by the electorate. I am reminded of an old lady in my Southern Illinois hometown: she would not go to Hell for a dime, but she would fish around the edge for it until she fell in. It is such matters and such men about which moral judgments can be made and which we the people are equipped to review. We may not have that special inhibition of public men, that pride of self, which prevents one from seeing the truth if it should contradict the public stand in which one may be trapped. The typical public man needs our curbs and guidance to protect him and his country, as well as any other people unfortunate enough to suffer from his miscalculations. I do not need to recapitulate here the accounts we have had in print and on film of what has been happening to the people of Vietnam. One must wonder what right we have to sacrifice them to our purposes. Much of what I have read about the Vietnam War is summed up in the moral and political judgment found in the opening paragraph of the Quaker publication, Peace in Vietnam: The scene was a small square in the city of Hue, South Vietnam, on a summer day in 1965. The place was known as a rendezvous for American GI's and Vietnamese girls. A couple of military police were on duty to keep order. On this day one of them had supplied himself with some candy for the children who played in the square and crowded around the Americans. As he started his distribution in a friendly mood, a swarm of youngsters, jumping and reaching, pressed about him. With a laugh, he tossed the candy out on the cobblestones. Immediately the children descended like locusts, each intent on grabbing a piece. A young Vietnamese school teacher happened by at this moment, and seeing the scram- bling children, he spoke to them in stern and emphatic tones. He told them to pick up the candy and give it back to the Americans. After some hesitation they sheepishly complied. Then, facing the soldier and speaking in measured English with a tone of suppressed anger and scorn, he said, "You Americans don't understand. You are making beggars of our children, prostitutes of our women, 63 and Communists of our men!"

63. AmmicAN FRmiEDs SERVICE COMMITTEE, PEACE NI VIETNAM: A NEW APPROACH IN SOUTHEAST ASIA 1 (1966). 1998 TEXAS TECH LA W REVIEW [Vol. 21:1941

The American citizen must be concerned for the effect of this war - I do not presume to speak against all war - upon our own children also, to say nothing of our men and women as well. The institution of the "Green Berets" is illustrative. The only prior reference to them I have come across is in Henri Alleg's The Question, a book describing the tortures inflicted by the French special forces (also known as the Green Berets) upon their enemies in Algeria. Anyone who visited a passion-torn France during that period would like to spare his country the domestic consequences of similar foreign travails. We already hear too much talk of torture and terror by our forces. Our children are exposed to such sentiments as are seen in this exchange in last Sunday's "comic strip," "Tales of the Green Beret": Chris [sic] - you came down right into the middle of Operation Falling Rain! We're a Special Forces Ex-Filtration and Counter- Subversion Action! We kidnap - we burn - we execute. Execution of the Communist political big-wigs? Affirmative! We clobber the Viet Cong from the inside - where they live! It's cruel - ruthless - the type of war they invented! They use terrorism, assassination. We're giving it back to them - in spades! It is in spiritual as well as political self-defense, then, that the citizen insists upon both the right and the duty to exercise that freedom of speech guaranteed him by the First Amendment.

vi. I have overstated the neglected case for the citizen's exercise of freedom of speech. It would be irresponsible to leave my argument where it now is. For the citizen must take care not to fall into the error of the public servant and consider his opposite number essentially inferior to him. One must, in order to discuss Vietnam properly, remind oneself of the case our political leaders present. Great dis- asters, we are warned, may have small beginnings and can be more easily dealt with at their inception than later. We are reminded of Munich, as we are urged to make the effort required to secure and protect freedom in the world for years to come. I think the position of those who defend the Administration is best stated in what Pericles had to say about the Athenian policy he recommended toward the city of Megara: Now let none of you conceive that we shall go to war for a trifle by not abrogating the act concerning Megara [by which act the 1990] FIRST AMENDMENT: EXPLORATIONS 1999

Megarians were forbidden access to both the fairs of Attica and all ports within the Athenian dominion] (yet this by them is pretended most, and that for the abrogation of it war shall stay), nor retain a scruple in your minds as if a small matter moved you to the war. For even this small matter containeth the trial and constancy of your resolution. Wherein if you give them way, you shall hereafter be commanded a greater matter as men that for fear will obey them likewise in that. But by a stiff denial you shall teach them plainly to come to you hereafter on terms of more equality. 64 Pericles' policy required limited warfare. But we should remember that he and his successors were not able to contain the forces and passions let loose by that limited war, with the result that their city went on to its ruin. Ghana and Indonesia have been pointed to as desirable results of our Vietnam policies. I suspect that this is another exaggeration of our power to shape the lives of others. Our experts may be surprised some day to learn how little of the time of Chinese leaders in recent years has been devoted to considering Vietnam. Why should we assume that people in Ghana and Indonesia or anywhere else are still impressed with our punitive power, when the people against whom we are using so much of it in North Vietnam continue to defy us? Besides, the United States should not want to claim credit for the incredible slaughter the Indonesians let loose among themselves last year. But whatever happened there, it happened without any American soldier or aid and evidently without any awareness by the United States that it was about to happen. Nor must we rule out the role there both of chance and of gross miscalculation by the Indonesian Communists. I return to Munich. What does it teach us about Vietnam? If Vietnam is like Munich, then perhaps one course would be better than another. But is it like Munich, and like Korea? Or is it more like the Spanish Civil War or perhaps even more like the Italian war against the helpless Ethiopians? It is curious in any event that the two heroes of Munich, Winston Churchill and Anthony Eden, did nct in 1954 see the crisis in Vietnam as Munich-like. As the British Prime Minister and Foreign Minister at that time, they refused to intervene with air strikes to help the French at Dien Bien Phu. Mr.

64. TRUCYDIDES, THE HISTORY OF THE PELOPONNESIAN WAR, I, 140. 2000 TEXAS TECH LAW RE VIEW [Vol. 21:1941

Eden's explanation in the House of Commons a decade ago continues to be timely: Her Majesty's Government have also been reproached in some unofficial quarters for their failure to support armed intervention to try to save Dien Bien Phu. It is quite true that we were at no time willing to support such action, for three reasons which seemed to us to be good, and still do. First, we were advised that air action alone could not have been effective. Secondly, any such military intervention could have destroyed the chances of a settle- ment at Geneva. And thirdly, it might well have led to a general war in Asia. I should add that we have at no time been reproached by our French allies for our decision, in spite of the fact that the burden of it fell upon them. 65 When we recall that we first intervened in Vietnam by aiding the French colonial effort to maintain control of that country, we can appreciate the difficulties in the argument that it is the cause of freedom we have been supporting there for more than a decade. If Mr. Churchill and Mr. Eden did not see Vietnam as another Munich - and Mr. Eden confronted the charge that his role in the Geneva Conference turned him into a "Municheer" 66 why should

65. 529 PAR. DEB., H.C. (5th Ser.) 434-35 (June 23, 1954). 66. Id. at 439-40. Clement R. Attlee observed on the occasion of this 1954 debate, Our interest is simply to get such conditions in Asia as will enable its various peoples to develop harmoniously as free nations taking their full part in the world. This [Geneva] Conference was concerned with two vital matters. One was Korea, which, after all, manifests the determination of the world to stop aggression. We all regret that further progress has not been made there. The other was Indo-China. Indo- China is rather a different matter. Indo-China I would describe as part of the process of bringing to an end obsolete colonialism. I think it is right to realize that from the point of view of Asia. Id. at 442 (emphasis added). Woodrow Wyatt predicted on the same occasion, One should remember that Viet Nam is not necessarily, even if it becomes entirely Communist, going to become a satellite of Communist China. There is a long record of hostility between the Annamese and the Chinese which was only interrupted by the French arrival in the 1860s. If the French do leave and if the [North] Vietnam[ese] obtain control of the entire country we need not necessarily assume that a satellite of China will arise there. I should also think that part of such an arrangement would be that there should be elections in due course in Viet Nam. We should have to accept the results of those elections in good faith in exactly the same way as we ask the Communists to accept the results of elections in Korea. In Korea the elections would go our way and in Viet Nam they would go the Communist way. Id. at 462; see supra note 48; infra note 190 and accompanying text. Consider, also, the invasion of Vietnam by Communist China in 1979. See Kramer, Who Taught Whom a Lesson?, 19901 FIRST AMENDMENT: EXPLORATIONS 2001 we? Developments since the 1954 Geneva Conference are described in this manner by a student of international affairs: The United States has contended that South Viet-Nam is the victim of armed attack by North Viet-Nam, and that the United States is therefore justified under Article 51 of the U. N. Charter to engage in "collective self-defense" at the invitation of the government of South Viet-Nam. This argument assumes that the two Viet-Nams are independent states and they have actually functioned as such since 1954. The Geneva Conference of that date, however, recognized Viet-Nam as one state, referred to the two zones into which it was temporarily divided by the cease-fire line, and provided for an election in 1956 to effect the union. North Viet-Nam sought to arrange for this election for three years, but was frustrated by the refusal of the government of South Viet-Nam to concur, and finally sought to effect union by supporting the Viet-Cong, which included migrants from North Viet-Nam and which in 1960 began to oppose the government in Saigon by guerrilla operations. The Diem government of South Viet-Nam in Saigon took this obstructive attitude toward the election because under United States advice it had not ratified the Geneva Accord. The United States had given this advice because, as President Eisenhower said in his memoirs, it was clear that in an election, 80 per cent of the people of Viet-Nam would vote to unite under Ho Chi Minh, the President of North Viet-Nam and for years the leader of Vietnamese nationalism, although he was a Communist. Other states in the Geneva Conference - France and Great Britain - had urged, along with India, that the elections be held, and the United States, while not ratifying the Geneva Agreements, had made a unilateral statement that it favored the principle of self-determination. In view of this history, it would appear that the hostilities against the South Viet-Nam government, whether by the Viet-Cong or by North Viet-Nam, constitute civil strife, and that outside intervention is forbidden. Furthermore, the United States' contention that it has a legal commitment to defend the independence of South Viet-Nam appears to have no basis. No commitment was made except to the Diem government, which ceased to exist in 1963, and in any case the Geneva

Wall St. J., Mar. 6, 1979, at 18; Chicago Sun:Times, Mar. 6, 1979, at 17 ("The Soviet Union painted itself as the cautious and restrained hero of the Indochina crisis Monday, saying it held back any action against Peking because it recognized a plot to start a U.S.-U.S.S.R. war."). 2002 TEXAS TECH LAW REVIEW [Vol. 21:1941

Agreements contemplated a union of the two Viet-Nams. 67 This description, which is supported by the materials I have studied, certainly does not remind an American of Munich, but rather more of the Mexican War. The fact of the matter remains, however, that these historical analogies are not of much use: for every one of them, a plausible counter-analogy can usually be suggested. One is left where one was, with the need to look at the facts of the case at hand and to think about them. The discipline to be brought to bear upon the issue is not that of history, but that of politics in the service of ethics. Historical material is of a subordinate character: it can be useful if properly handled; it can help remind us not to lose sight of the opportunities provided by even our mistakes. My impression has long been that the dreadful execution of Julius and Ethel Rosenberg, parents of two young children, at the beginning of President Eisen- hower's administration confirmed his "anti-Communism" and perhaps contributed to the efforts to improve relations with Russia that Americans entrusted to him. Similarly, the dramatics, and hence the alarm, of the Cuban Missile Crisis may have contributed to the development of the Test Ban Treaty. Now, perhaps, the long-standing and serious problems of our relations with China can be settled in a reasonable manner. That is, one result of our unreasonable and conscience-stirring policy in Vietnam may be a more reasonable policy on our part toward China, if we can manage to settle our affairs in Vietnam without provoking open Chinese intervention. (The best

67. Wright, Principles of Foreign Policy, in THE VIET-NAM READER: ARTICLES AND DOCUMENTS IN AmERICAN FOREIGN POLICY AND THE VrET-NAM CmisuS 11-12 (G. Raskin & B. Fall eds. 1965). Professor Quincy Wright concluded the passage reproduced in the VIETNAM READER, as follows: "The United States and Communist China appear, therefore, to be the main supporters of the policy of intervention in civil strife to forward an ideology which either one favors." Id. at 12; see NEw YORKER, Mar. 19, 1979, at 29. On the "commitments" to which Professor Wright refers, see a recent report on "our" Vietnamese promises: President Nixon coerced Saigon into accepting a 1973 Viet Nam War cease-fire and then promised military support that never came, a new study [done for the Defense Department by Rand Corporation] says. ... [It] quotes Nixon as saying, "You can count on us," and adding, "The United States will meet all contingencies in case the agreement is violated." . . . But neither Nixon nor his successor Gerald Ford ever asked Congress to authorize any air missions. Chicago Tribune, Jan. 7, 1979, § 3, at 2. On the promises that presidents make, see Anastaplo, American Constitutionalism, supra note 53, at 136-37 (memorandum prepared with Malcolm P. Sharp). 19901 FIRST AMENDMENT: EXPLORATIONS 2003 proof that China is not today really a threat to us may be found in the fact that we are behaving the way we are only a few miles from her borders: if she were a serious threat, we would not be acting or be permitted to act so cavalierly out there.) We, with our concern about Communist aggression, should derive some comfort from what we have learned in Vietnam about the limits of the use of force: even small countries can hold out against great powers if properly motivated and supported. Are not the North Vietnamese holding as firm in the face of threats and destruction as we would want our people and our friends to do in similar circumstances? This suggests the limits both of war and of material impositions upon the human spirit, even as we are reminded of the terrible uses to which technology may be put. You will notice that I have not made any suggestion about what we should do now in Vietnam. Few of the respectable critics of the war have yet advocated immediate withdrawal of American armed forces. Richard M. Goodwin, formerly of the White House Staff, gave last week an insider's view of "the bedrock vital interest of the United States": That interest is to establish that American military power, once committed to defend another nation, cannot be driven from the field. It is not to guarantee South Vietnam forever against the 68 possibility of a Communist takeover. What is ruled out by Mr. Goodwin's formulation is all talk of Communist threats to our immediate security, or of the cause of freedom, or of falling dominoes. It is clear that he is skeptical about our decision to get into Vietnam in the first place. I do not see, however, that our Government is entitled to risk the life of a single

68. Goodwin, Reflections on Vietnam, The New Yorker, Apr. 16, 1966, at 57, 90; see also id. at 104. Does not mankind, on the other hand, have a "bedrock vital interest" in suppressing out- and-out barbarity? See, e.g., Kilian, An Inhuman Regime Dies; Must We Try to Look Sad?, Chicago Tribune, Jan. 14, 1979, § 2, at 4; Cambodia: An Experiment in Genocide, TnAE, July 31, 1978, at 39; The Murder of Millions; Cambodia: Government Gone Mad, Chicago Tribune, Oct. 16, 1978,'§ 4, at 4. Compare Harsch, Great Power Follies, Christian Sci. Monitor, Jan. 11, 1979, at 23 ("If the present world were run rationally, the United States, China and the Soviet Union would all have joined in congratulating the Government of Vietnam on its decision to put an end to the Pol Pot regime in Cambodia, and doing it.") with Don't Let Hanoi Off the Hook (editorial). But see Schmetzer, Vietnam Rejoins Cambodian Fray, Chicago Tribune, Mar. 18, 1990, § 1,at 23; Erlanger, Vietnamese Force Helping Cambodia, Diplomats Assert: Despite Pullout in Fall, Hanoi is Said to Heed Requests to Fight Khmer Rouge, N.Y. Times, Feb. 23, 1990, § 1, at 1. 2004 TEXAS TECH LAW REVIEW [Vol. 21:1941

American soldier simply to prove that we can stay where we neither want nor need to be. Such dramatics would indeed be childish, if not criminal. I take my own cue from Maxwell Taylor. General Taylor has said explicitly what the President and the Secretary of State had already indicated, that if we were asked by the Vietnamese to leave their country, we would do so. 69 He added, in his talk here in Chicago Wednesday night, that if a legitimately-elected government in South Vietnam were to ask Americans to leave, "it would be good news for us." If the President's advisor can say this, why shouldn't we? I add this further observation: the only "legitimately- elected government" to determine what we should do in Vietnam or anywhere else is our own, not whatever may happen to be thrown together from time to time in Saigon. So, with General Taylor, I can say that it would be good for the United States to get out of Vietnam. But I add the suggestion that we should not do so without offering to take with us everyone who would be thereafter endangered because of their association heretofore with us. If we disengage ourselves with grace, we can still expect whatever government settles down in Vietnam to invite us to return with our money and our technical assistance. I believe the American people would then want to respond to the great work of reconstruction with the generosity in which they surpass all other peoples on earth. vii. The public servant is obliged by circumstances to use his opportunities; he cannot be irresponsible; he must make an effort.

69. See also Chicago Sun-Times, Apr. 26, 1966, at 20, (remarks of Senator Richard B. Russell, Chairman, Senate Armed Services Committee). "I must say, " Mr. Attlee said in the 1954 Parliamentary debate from which I have quoted, "that sometimes it is awfully difficult to understand just what the American line is, as between what members of the Government say and what senators say, and sometimes what generals and admirals say." 529 PARL. DEB., H.C. (5th Ser.) 442 (1954). Mr. Wyatt thereafter observed: America has the power of [our] alliance but has not yet found a way of displaying it without causing almost as much alarm among her friends as among her enemies. It is now that Britain has a decisive role to play. The role is to civilize the power of America .... Today, Britain is the respected free nation in South-East Asia and I am afraid America is the discredited nation. This may be very painful to Americans, but they should look into the causes of this change, if they want to find themselves popular once more. Id. at 468-69. But see, on popularity polls, supra note 58. 19901 FIRST AMENDMENT: EXPLORATIONS 2005

Whether we citizens make use of our opportunities is another matter. Our attention shifts easily: those interested in civil rights yesterday are interested in Vietnam today and will be interested in poverty tomorrow and perhaps even religion the day after tomorrow. One problem we have, as we use our opportunities as citizens with respect to the war in Vietnam, is to do so in such a way as to prevent or at least to restrain the emergence of bitterness. There are citizens defending the war who are as patriotic, as sensitive, and as well-intentioned as any critic of the war. One must be reminded of and thus moderated by the broader issue to which the artist, the religious man and even the philosopher would direct our attention. All three aspire for eternal things, as the citizen does in his own way as well. Consider the terms in which a twenty-year-old soldier in Vietnam wrote his family in North Carolina shortly before his death in battle: I'm writing this letter as my last one. You've probably already received word that I'm dead and that the government wished to express its deepest regret. Believe me, I didn't want to die, but I know it was part of my job. I want my country to live for billions and billions of years to come. I want it to stand as a light to all people oppressed, and guide them to the same freedom we know. If we can stand and fight for freedom, then I think we have done the job God sent down for us. It's up to every American to fight for the freedom we hold so dear. If we don't the smells of free air could become dark and damp as in a prison cell. We won't be able to look at ourselves in a mirror, much less at our sons and daughters, because we know we have failed our God, country and our future generations .... Don't mourn me, Mother, for I'm happy I died fighting my country's enemies, and I will live forever in people's minds. I've done what I've always dreamed of. Don't mourn me, for I died a soldier of the United States of America...70 Immediately below the newspaper article reporting this letter there was, almost as a footnote, a two-sentence news item that displays how futile and even absurd a death can be: Kampala, Uganda (AP) Sheik Mohammedi Mayanyanja, Masaka town councilman, was killed when a buffalo he shot recovered as he was sitting on it to pose for a picture. The wounded beast sprang up and attacked. 7'

70. Chicago Sun-Times, Mar. 9, 1966, at 8. 71. Id. For my comments over the years on Vietnam, see ANASTAPLO, THE CONSTrrU- 2006 TEXAS TECH LAW RE VIEW [Vol. 21:1941

This providential juxtaposition of newspaper reports serves to warn us: we must take care that the families which have made sacrifices not feel betrayed by whatever we now do in Vietnam. We see here the ultimate test both of the Administration's position and of public criticism of that position: we do not want to disparage sacrifices already made - we have learned something important because of the sacrifices made in Vietnam as well as in Korea; we do not want to see additional sacrifices made without purpose and effect; we do not want so to conduct ourselves now that our people will not

TIONALIST, supra note 3, passim; ANASTAPLO, HuMAn BEING AND CrrIZEN, supra note 5, passim; Anastaplo, In re Allan Bloom, supra note 26, at 272-276; Anastaplo, Occasions, supra note 50, at 398-399; Anastaplo, American Constitutionalism, supra note 53, at 136-37, 142, 151; Anastaplo, Preliminary Reflections on the Pentagon Papers, U. Cm. MAo., Jan.-Feb. 1972, at 2, Mar.-Apr. 1972, at 16 (reprinted in 118 CONG. REc. 24990 (1972)) [hereinafter Anastaplo, Reflections]. All of these comments were based on a recognition which was made explicit in The Constitutionalist: "One need not assume ... that the government of North Vietnam is better than that of South Vietnam: rather, there is every reason to believe that the northern regime is significantly more oppressive." ANASTAPLO, THE CONSTITUnoNIST, supra note 3, at 785 n. 11. For further indications of my use of freedom of the press to comment on American foreign policy, see 120 CONG. REc. 26618 (1974) (Cyprus Countdown and the Folly of the Greek Colonels); ANASTAPLO, Canada and Quebec Separatism, in HUMAN BEING AND CITlZN, supra note 5, at 139-150; Anastaplo, Politics versus Ideology: The Greek Case, J. oF THE HELLENIC DIASPORA, Fall 1974, at 23 [hereinafter Anastaplo, Ideology] (reprinted, in an abridged form, in 121 CONG. REc. 10321 (1975) and also to be included in ANASTAPLO, THE AMERIcAN MORALIST, supra note 18); Anastaplo, Retreat from Politics: Greece, 1967, 9 MAss. REV. 83 (1968) (reprinted in 115 CONG. REc. 8461 (1969)); Anastaplo, Greece Today and the Limits of Compromise, 54 SOuTHWEST REv. 1 (1968) (reprinted in 115 CONG. REc. 40495 (1969)); Anastaplo, Swan Song of an Eagle: America in Greece, 50 SOUTHWEST REv. 105 (1970); Anastaplo, Lens Book Review, supra note 60; Anastaplo, Book Review, Chicago Sun-Times, Book Week, Jan. 6, 1974, § 3, at 14 (reviewing H. THOMAS, JOHN STRACHEY (1973)); What Gerald Ford Should Be Saying, Chicago Tribune, Oct. 20, 1976, § 3, at 4; The Case for Supporting Israel, Chicago Sun-Times, Oct. 21, 1973, § IA, at 1 (reprinted in 119 CONG. REc. 35984, and in ANASTAPLO, HUMAN BEING AND CrZEN, supra note 5, at 155-59); What Can Be Said for the Nixon Administration?, Chicago Tribune, Sept. 22, 1973, § 1, at 16; On Supplying Wheat for India, Carterville Herald, Apr. 27, 1951, at 4. Consider, also, my warning, in a review of Charles Goodell's book, POLITCA. PRIsoNERs IN AMERICA: The most serious threat likely to impress itself upon the American public in the years immediately ahead has to do with the so-called "energy crisis" and the resulting concern about our vulnerable "jugular vein" in the Middle East oil countries. Thus, doubling the cost of our gasoline at home makes much more sense than desperate adventures abroad. Anastaplo, Book Review, Chicago Sun-Times, Book Week, July 8, 1973, at 1. I still do not see that we need treat oil, or any other fuel, in a way different from the way we treat, by recourse to a free market in this country, any other commodity "vital" to our economy and to our way of life. See Anastaplo, Church and State: Explorations, 19 Loy. U. Cm. L. J. 61, 100-102 (1987) [hereinafter Anastaplo, Church and State]. 1990] FIRST AMENDMENT: EXPLORATIONS 2007 respond properly hereafter when the country faces genuine dangers that require great sacrifices. Our primary concern as citizens should be with what we do to, with and for ourselves. I was recently told by two Swiss visitors that our public discussion of the war disturbed America's friends abroad, that when the President and his experts decided on a policy, the people should simply obey. I have elaborated this evening the response I made on that occasion: "In America there are no experts in political matters, but only sovereign citizens." Besides, I asked our visitors in the spirit of the First Amendment, should not foreigners be reassured rather than disturbed to see the most powerful country in the history of the earth subject its governmental policies and decisions to public discussion and, it is to be hoped, to rational correction? Is this not the measure of the superiority of life under this kind of regime to any other available elsewhere today?

72 V. IT'S YOUR COUNTRY Our American Example has done [the French] good; but like all Novelties, Liberty runs away with their Discretion, if they have any. They want an American Constitution with the Exception of a King instead of a President, without reflecting that they have not American Citizens to support that Constitution .... Different Constitutions of Government are necessary to the different Soci- eties on the Face of this Planet. Their Difference of Position is in itself a powerful Cause, their Manners, their Habits. The scientific Taylor who should cut after Grecian or Chinese Models would not have many Customers either in London or Paris: and those who look to America for their political Forms are not unlike those Taylors in the Island of Laputa who, as Gulliver tells us, always take Measure with a Quadrant. He tells us indeed, what one would naturally expect from such a Process, that the People are seldom fitted. 73 - Gouverneur Morris

72. This talk was given at Rosary College, River Forest, Illinois, at the close of a day- long "Teach-in on Vietnam," April 26, 1968. I was at the time a member of the Political Science and Philosophy Departments of the College as well as a member of the adult education faculty at the University of Chicago. Copies of my April 29, 1966 talk on Vietnam, Part V, above, had been made available, in mimeographed form, to the Rosary College community. 73. These observations were made by Gouverneur Morris during the French Revolution while he was the American Minister to France. See Anastaplo, American Constitutionalism, supra note 53, at 101. 2008 TEXAS TECH LAW REVIEW [Vol. 21:1941

i. Permit me to bring up-to-date on this occasion the talk on Vietnam I gave two years ago by developing further one of the assumptions of that talk, an assumption about the significance of public opinion for a self-governing people. The rarity and perils, as well as the attractions, of self-government are reflected in these 1787 observations in the opening paragraph of The Federalist Papers: It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of man- 74 kind. The "crisis at which we are arrived" today is somewhat different from that in 1787: it may be even more important that we govern ourselves sensibly at this time, now that we are the most powerful nation on the earth. The fortunes of mankind are again at stake.

ii. Abraham Lincoln pointed out, in the course of his 1858 debates with Stephen A. Douglas: In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently, he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes 75 and decisions possible or impossible to be executed. This Lincolnian observation, it seems to me, is appropriate in assessing where we are with respect to two issues before the country today, the issue of Vietnam and the issue of race relations. These two matters are, it has been noticed, intimately related. Thus, we have been told of the demands of the war upon the money,

74. THE FEDERALIST No. 1, October 27, 1787. 75. LINCOLN, supra note 47, at 298 (first Lincoln-Douglas debate; Ottawa, Illinois, August 21, 1858). 1990] FIRST AMENDMENT: EXPLORATIONS 2009 energy and talent that would be otherwise available to improve life among the poor and desperate of our cities. We can see that there has been diverted from our domestic problems some of the resources considered essential for their solution. But there is a second way in which these two problems, Vietnam and race relations, are related, and that is in their susceptibility to peaceful political resolution. To depreciate, as some do, our ability to rely upon conventional political action is to surrender the opportunity we still have to employ reason in public affairs and thereby to continue to govern ourselves.

iii.

I believe now, as I have from the beginning of our involvement in Indochina, that the Vietnam War has been for us a dreadful mistake. I see mistaken American leaders conscientiously pursuing a policy that was well-intentioned but misconceived. I do not believe it useful to speak of the United States as either defeated or about to be defeated in Vietnam: power such as we have is not defeated so easily. When we are defeated, we will surely feel it here at home - in the sights visible in our streets, in the spirit of the country, even on our dinner tables - and the rest of the world will feel it as well. We have not been defeated: rather, we have not been willing to secure a "victory" by using fully the tremendous non-nuclear power we have to destroy Vietnam in order to achieve our goals or to save our face. I see Mr. Johnson as a sadly mistaken man, as a man trapped by his shortcomings, misinformation, and miscalculations. I do not see him as evil or unrestrained. Rather, I see him as a political man who has finally sensed the mood of the country and has adjusted himself to it. The President announced his withdrawal as a candidate for re- election, it seems to me, not merely to avoid a tough campaign or to avoid a humiliating defeat in Wisconsin, but also to free his hands for the negotiations he now knows to be necessary. That is, he wanted to be able to negotiate what some would condemn as a "surrender" without seeming to be doing so for personal political gain. Thus, I see his announced withdrawal from political life as designed more to pacify the hawks than to satisfy the doves. Whether he also has in mind a possible revival of his candidacy in the event his Administration should secure peace in Vietnam is secondary. That is far less important an issue. It is far more important that everyone 2010 TEXAS TECH LA W REVIEW [Vol. 21:1941

- here and abroad, among our friends as well as among our adversaries - seize this opportunity to settle this conflict before it really gets out of hand.

iv. The President has adopted his present course of action in large part because of the efforts the past few years of those citizens who have been addressing themselves to the issue of Vietnam. Our means for making such efforts are provided by the constitutional guarantee of the right and duty to engage in the full discussion of public issues. My 1966 talk on Vietnam assumed that it makes a difference what citizens believe and say about public matters. The concern of that talk, in circumstances markedly different from what we confront today, was to argue that what citizens say can have some basis in fact, that citizens are not obliged to defer completely to the "expert" pronouncements about the war to which the American people were then being asked to defer. We must take care, however, lest our right and duty to discuss the issues be transformed merely into a desire to express ourselves, to strike out in childish resentment at whatever may seem in any way superior to us. We must take care, that is, to keep firmly in view the political character of our activity and to exploit our political opportunities. Critical to the preservation and proper use of power is the self-confident awareness that one does have such power. I was invited several weeks ago to a meeting in the apartment of some University of Chicago graduate students who were debating what they were going to do about the Vietnam War. Those rather respectable students, Roman Catholics for the most part, were on the verge of becoming desperate. 76 Their thoughts had turned to

76. Student sentiment at that time was described in this way by the president of St. John's College of Annapolis, Maryland, and Santa Fe, New. Mexico: St. John's College, like many of its sister institutions throughout the nation, has been afflicted with student malaise and restlessness over the past year. This has manifested itself in excessive class absences, in some experimentation with so-called mind-expanding drugs, and in a rate of student attrition which is somewhat greater than normal. All of this posed a frustrating problem for the administration and the faculty alike, though the behavior of a small minority of the student body should not obscure the solid achievement of the majority .... It is clear that a considerable part of the unrest may be attributed to the escalation of the unpopular Viet Nam war. Men and women alike find no idealism in this 19901 FIRST AMENDMENT: EXPLORATIONS 2011

illegal draft resistance, to organized civil disobedience, and to permanent emigration. I insisted on that occasion upon something which has become much more obvious since but which then must have seemed quite unrealistic, if not even "Uncle Tomistic." I argued that much more could and should still be done by them before they were entitled to resort to the desperate measures they felt themselves driven to consider. The following morning, the results in New Hampshire were announced, results achieved in large part because of the efforts of thousands of college students - and thus began that remarkable series of events which may yet see the end of our costly but, I hope, instructive Vietnam involvement. I believe it is difficult to overestimate the influence of public opinion in the United States. I believe it is easy to underestimate the role that dedicated and informed citizens can still play in the political life of our country.77

V. One must, in order to appreciate the role of public opinion with respect to race relations, step back from our immediate crises and bloodshed to survey the entire scene. 78 My opinion is that the decisive crisis in our time with respect to civil rights has already been confronted - and that the United States has already made its will known. That will is to be seen, in its most recent form, in the 1954 opinion of the Supreme Court with respect to school desegregation

struggle and therefore manifest a resentment and fear of the draft. Other events on the national and international scene have been disquieting as well - the civil rights struggle on the one hand and the Israeli-Arab war on the other. These latter two have tended to capture student imaginations and have promoted a desire in some students to desert college for more activist roles. 19 Bulletin of St. John's College, Dec. 1967, at 3; see Anastaplo, In re Allan Bloom, supra note 26, at 272-276. 77. "Defeatism" in the context of the Vietnam War is expressed, it seems to me, in the attitude that the war is something "we are stuck with." See for example, the comment of Professor Milton Friedman: The war in Vietnam is not something anybody can be very happy about, but I believe we are stuck with it and that the least undesirable course of action is for us to continue and force it through to something like a successful outcome. U. Cm. MAG., Feb. 1968, at 3. I continue to prefer as more salutary my comments on the war in my April 29, 1966 talk, Viet Nam and the Presumption of Citizenship, supra Part IV. 78. See Anastaplo, Allan Bloom and Race Relations in the United States, in ESSAYS ON THE CLOSING OF THE AMEucA MIND, 225 (R. Stone ed. 1989); Anastaplo, Slavery and the Constitution: Explorations, 20 TEx. TEc L. Rav. 677, 784-786 (1989) (see infra note 195). 2012 TEXAS TECH LAW REVIEW [Vol. 21:1941

(with implications, subsequently developed, for many other institutions in our community). Much remains to be done - much heart- break and suffering remain to be endured, much effort and sacrifice to be made - but we do have now an authoritative reconfirmation of the fundamental American opinion on this subject, an opinion that goes back to the Declaration of Independence and the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution. No contemporary opinion can be as authoritative for us as that of the law, when that law (whether established by a legislature or defined by the judiciary) is duly determined and when it conforms to our basic principles. There are among us mistaken, unrepresen- tative men who know they have failed in their campaign to preserve the familiar and hence comforting legacy of slavery - and they lash out desperately and hopelessly in an effort to regain by violence a past that is now lost. But there are other violent men among us who do not yet know they have begun to win what they are entitled to - and they talk romantically and even foolishly of taking their "revolution" into the streets, to the very forum where reason and principles are least effective and where a minority of distinctive color is most vulnerable. These would-be revolutionaries underestimate the significance of the conventional political power now available to them, power assured them by the ballot that has now been put into the hands of every minority in this country aware of itself. It is yet to be appreciated what it means that one of the principal political "bosses" in Missis- sippi today is Charles Evers, the brother of a murdered civil rights leader. He, or his successor, will within a decade be bargained with by white politicians who are used to dealing with any leader who happens to have votes he can deliver. That which will soon happen even in Mississippi is already happening in our cities.79 Such politically-minded men as Mr. Evers will achieve even more with respect to race relations than the gallant efforts of Eugene McCarthy have already achieved with respect to the Vietnam War. vi. I doubt, on the other hand, that civil disobedience, or excessive talk of civil disobedience, is in the interest of anyone today. Recourse

79. Consider, for example, what happened to the Bork nomination in 1987 when southern senators could be recruited against him by civil rights activists. See Anastaplo, Bork on Bork, Book Review, 84 Nw U.L. Rv. 1142 (1990) (reviewing BoRK, Tm TEMPINo OF AMERCA (1990) [hereinafter Anastaplo, Bork on Bork]. 19901 FIRST AMENDMENT: EXPLORATIONS 2013 to such civil disobedience as we are now likely to see disarms the enthusiast who thereby sacrifices his political power for the sake of a momentary effect, an effect which he can neither control nor predict. It arms, on the other hand, the extremists who prefer to see a repressive order restored.80 Civil disobedience, as an organized movement in this country today, does not seem to me to be able to face up to the problem of determining precisely how the institutions of this country are going to be reconstituted and, how the public business is going to be conducted once disobedience ceases. The only useful purpose civil disobedience can serve among us today is as "symbolic speech" - and even this has to be expressed with more grace and self-restraint than most people are capable of. Otherwise, civil disobedience becomes, at best, a diversion, an avoidance of political confrontation of political problems; it becomes, at worst, a breakdown of law, order and community, out of the control of those who set it in motion. It is the duty of responsible leaders, on the other hand, to promote decent resolutions of the issues that concerned citizens, and especially the young, cannot help but feel strongly about. i

80. See ANASTAPLO, HUMAN BEING AND CrizFN, supra note 5, at 203-213; see also my essay on civil disobedience to be published in The American Moralist (supra note 18). 81. Consider my letter of May 19, 1966, to the editor of The University of Chicago Maroon. The student action referred to was in connection with the issue of the ranking of male students by the University of Chicago for Selective Service purposes. Does someone no longer a student dare admit he found the capture of the Admin- istration Building by our youngsters imaginative, healthy and even delightful? The display of spirit and good nature on the part of the students was remarkable, as was their sense of style. I stress their good points because of the blinding indignation I encountered the past week among so many members of the faculty. The principal complaint I heard was that the students had been lawless. But I found them on this occasion remarkably well-disciplined and respectful of each other, of the faculty and of the property of the University. The more I saw of them as they went about their business, especially in their long parliamentary deliberations, the more attractive I found them: they are decent, intelligent and generous. If they are representative of the rising generation, the country will be in good hands when we pass on. The students have in their measured rebellion set a high standard of dedicated moderation. Cannot the faculty rise to the occasion and match this good will and sense of purpose? Talk of "illegality," of "trespass," of "coercion," and of reprisals is unrealistic. No matter what statutes and by-laws may say, it is also the students' university. The true man of law recognizes that nothing is really settled until it is settled right. Two critical problems have now been brought dramatically and effectively to the attention of this academic community. We must devise means of adequate consul- tation with students on university matters affecting their lives. We must define 2014 TEXAS TECH LA W REVIEW [Vol. 21:1941

Civil disobedience, it should be noticed, is to be distinguished from the fundamentally political approach found in the Declaration of Independence. The Declaration recognizes our dependence as human beings on the community, a dependence which induces us to alter or to abolish our government when it becomes destructive of the ends for which governments are instituted among men, "and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to [us] shall seem most likely to effect [our] Safety and Happiness." Thus, the right of revolution, as defined by the Declaration of Independence, reminds us that there are standards outside and above the teachings of particular governments, standards superior even to what our own government might at any moment believe, choose or advocate. The right of revolution implies, that is, the supremacy in human affairs of reason and nature rather than of chance or force.8 2

Vii. The dictates of reason, it seems to me, point to the determined political action, consistent with the Constitution, that is available for the resolution of the serious problems confronting our community today.83

publicly, before it is too late, the proper relation between a free university and our government. Much more serious instances than draft policy are involved here. Anastaplo, A Faculty View, U. Chi. Maroon, June 24, 1966, at 5. Similar action by the students in the Spring of 1967 proved less effective, partly because the issue was far less clearly defined than it had been in 1966. This lack of clarity helped make the students far more vulnerable than they had been the year before. They were, one might say, in the frustrating position of being unable to "take out" on officialdom close at hand ("the University") the resentment built up among them against officialdom in Washington by the worsening war in Viet Nam - and this led to mistakes. In the meantine, the "blinding indignation" among a misled faculty had become even worse. See ANASTAPLO, HUMAN BEING AND Crr N, supra note 5, at 263 n. 9; Anastaplo, In re Allan Bloom, supra note 26, at 273. 82. See Anastaplo, The Declaration of Independence, 9 ST. Louis U.L.J. 390, 398-403 (1965) [hereinafter Anastaplo, Declaration]; ANAsTAPLo, THE CoNsTrrbTUoN OF 1787, supra note 2, at 2-3, 333; see also infra Part IX, Section iii. Central to my argument in this nine- part article is the proposition that freedom of speech is for Americans the application of the principles of the right of revolution to everyday affairs. See infra text accompanying note 94. 83. Compare my discussion of the situation in Greece at that time in Retreat from Politics: Greece, 1967, 9 MAss. REv. 83 (1968). I observed, in an article dated December 28, 1967, Greeks . .. today stand at a precipice. They have gotten there mainly because of their folly. They are in danger of being trapped, as we Americans have foolishly allowed ourselves to be, in a costly, ugly and ultimately purposeless conflict for which brave young men will be required to make unnecessary sacrifices. Id. at 84. (The text is quoted here as I wrote it. The printed article displays several dozen unauthorized editorial changes.) See also supra note 71; infra note 96. 1990] FIRST AMENDMENT: EXPLORATIONS 2015

If I were politically ambitious and the proper color, I would devote myself to mobilizing and employing the growing political power available to the people in our cities - and I would not permit the reckless and the thoughtless to take it away from me by dramatic, self-serving and self-defeating recourse to violence. I am confident that the politically-ambitious already appreciate this and will control their constituents. It is important that the rest of us also appreciate this and give them an opportunity to do their work while we provide them the aid they might need. If I were a college student troubled by the war, I would devote myself this summer to making certain by immediate political action that the course upon which we have now seemed to embark becomes the one we resolutely follow. I am confident, however, that you do not need to be told this: I take it that many of you intend to continue in the months ahead the work you began several months ago in New Hampshire. Perhaps you do need to be told that you will be working from strength and that you should conduct yourselves accordingly: what is called for now is not desperate enterprise but dedicated moderation. It should be recognized, in any event, that anyone who is politician enough to be elected President in November 1968 will know it is in his interest to avoid the dreadfully mistaken policy that led so quickly to the embittered disintegration of Mr. Johnson's massive majority of November 1964. We should, on our part, try to make it generally clear that the President's self-interest coincides in this case with our national interest in both common defense and domestic tranquility, to say nothing of international justice. But there is something that is even more important for the political life of the community than any of these immediately useful activities, and that is that there should be among us the development of a proper understanding of the aspirations and institutions of this country. Some of our citizens must take time to think seriously about what the country should stand for and be. We must, that is, recognize with Lincoln that "No policy that does not rest upon some philosophical public opinion can be permanently maintained." 4 It is your opportunity as well as your duty to prepare yourselves properly for the contribution you can make to an intelligent, "phil-

84. IV LINCOLN, supra note 47, at 17 (New Haven, Conn., Mar. 6, 1860); see supra note 26 and accompanying text (Part II, § ii). 2016 TEXAS TECH LA W REVIEW [Vol. 21:1941 osophical" and hence truly influential public opinion. You have, in other words, a lot yet to learn. There is still time to prepare yourselves to become conscious molders of public sentiment, for there will still be crises worthy of your efforts not only next year and the year after, but even a decade or two from now. Indeed, it is going to be your country for a long time to come, the country, that is, of whoever understands what he is doing in his capacity as an American citizen.

85 VII. THE FIRST AMENDMENT RECONSIDERED Some people lie when they tell the truth; I tell the truth lying. 8 6 - Mark Twain

It has now been more than two decades since I was last on this campus, at which time I gave a talk, "The American Heritage: Words and Deeds. '8 7 I discussed the First Amendment, particularly the provision, "Congress shall make no law ... abridging the freedom of speech, or of the press," taking as my point of departure on that occasion a book which had been published three years before (in 1960), Leonard W. Levy's Legacy of Suppression - Freedom of Speech and Press in Early American History. This time I am to reconsider the First Amendment with you, taking as my point of departure Professor Levy's revision of his Legacy of Suppression, a somewhat longer book entitled Emergence of a Free Press. I believe it is instructive to draw upon what has happened to the Levy thesis over the years and how it came to be developed as it has been.

85. This talk was given at the State University of New York, Binghamton, New York, April 16, 1986. Professor Robin Oggins, of the History. faculty in that university, arranged both this 1986 talk and its predecessor in 1963. 86. MARK TwAIN LAUGHING 413 (P. Zall ed. 1985). Mark Twain once observed that humor is "the good natured side of any truth." Id. at 165. A character in Aristophanes' Birds is moved to say, "In truth these things appear to me like lies." (1167). See STRAUSS, SOCRATES AND ARISTOPHANES, supra note 6, at 177-78. 87. See Anastaplo, Book Review, 39 N.Y.U. L. REv. 735 (1964) (review of L. LEVY, LEGACY OF SUPPRESSION - FREEDOM OF SPEECH AND PREss IN EARLY AMEICAN HISTORY (1960)); see ANASTAPLO, HUMAN BEING AND CITIZEN, supra note 5, at 33-45; see also Anastaplo, Notes, supra note 22, at 625; infra note 98. 1990] FIRST AMENDMENT: EXPLORATIONS 2017

Political discourse in this country during the intervening years has been dominated by the American response to the Vietnam War and its aftermath. This has been a period almost as turbulent as that out of which the First Amendment emerged. Curiously enough, the talk I gave here in Binghamton in 1963 plays a small part in the story of the Levy thesis as do a few other matters about which I happen to have personal knowledge. So we will be considering, among other things, the history of a historian's work, if not even the very nature of history. It is often said that Mr. Levy's Legacy of Suppression has become a landmark of legal history. Its publisher can with justice describe it as "a meticulously researched examination of the law and theory surrounding the principle of free expression in the early years of the Republic." This is an appraisal made as well by many reviewers of the book during the past two decades. They recognize that Mr. Levy is a man of great energy and discipline, deserving recognition as one of the foremost historians in this century of the American constitutional system. The best introduction to Legacy of Suppression is provided by the author himself in his opening paragraphs, which I reproduced in my original discussion as well: This book presents a revisionist interpretation of the origins and original understanding of the First Amendment's clause on freedom of speech and press. I have been reluctantly forced to conclude that the generation which adopted the Constitution and the Bill of Rights did not believe in a broad scope for freedom of expression, particularly in the realm of politics. I find that libertarian theory from the time of Milton to the ratification of the First Amendment substantially accepted the right of the state to suppress seditious libel. I find also that the American experience with freedom of political expression was as slight as the theoretical inheritance was narrow. Indeed, the Amer- ican legislatures, especially during the colonial period, were far more oppressive than the supposedly tyrannous common-law courts. The evidence drawn particularly from the period 1776 to 1791 indicates that the generation that framed the first state declarations of rights and the First Amendment was hardly as libertarian as we have traditionally assumed. They did not intend to give free rein to criticism of the government that might be deemed seditious libel, although the concept of seditious libel was - and still is - the principal basis of muzzling political dissent. There is even reason to believe that the Bill of Rights was more the chance 2018 TEXAS TECH LAW REVIEW [Vol. 21:1941

product of political expediency on all sides than of principled commitment to personal liberties. A broad libertarian theory of freedom of speech and press did not emerge in the United States until the Jeffersonians, when a minority party, were, forced to defend themselves against the Federalist Sedition Act of 1798. In power, however, the Jeffersonians were not much more tolerant of their political critics than the Federalists had been. This has been a difficult book to write, because the facts have dictated conclusions that violate my predilections and clash with the accepted version of history. But just as my personal preferences as to current policy do not depend on what passed for wisdom in the eighteenth century, my views as a scholar do not depend on my civic convictions nor on historical convention."8 I provided, in my 1963 discussion, this additional report on what is in the Levy book: The story that had been handed down to us was (in Lincoln's words) of a "birth of freedom" in 1776. But, we are now told, this was not the case. Rather, we are told in great detail of how Tories were ruthlessly suppressed during-the Revolutionary War and of the severity and persistence of colonial and state legislatures in shielding government officials from public criticism. Indeed, we are practically asked to believe that it was almost inevitable that the Sedition Act of 1798 should have been enacted: the authors of that act were merely drawing on the legacy of suppression left by the colonial and revolutionary experience. Thus, the traditional account, we are informed, was inspiring, even noble, but simply mistaken. 9 But, I went on to ask, were there not serious difficulties with such a revisionist account as Mr. Levy presented? I began to answer my question with the following observations: The traditional account has been passed down for generations, seemingly without question. Was it accepted so early and so readily because it was true, or because it was salutary, or even because it happened to be both true and salutary? The revisionist account has, if anything, only the truth to recommend it - a recreated truth. But such truth is hard to come by: for there is something fundamentally arbitrary about an historian's formulation. And

88. L. LEvy, LEGACY OF SUPPRESSION - FREEDOM OF SPEECH AND PRESS IN EARLY AMERICAN HISTORY Vi-Viii (1960) [hereinafter LEVY, LEGACY]; ANASTAPLO, HUMAN BEING AND CrTiZEN, supra note 5, at 35-36. 89. ANASTAPLO, HUMAN BEING AND CTrUrN, supra note 5, at 36. 1990] FIRST AMENDMENT: EXPLORATIONS 2019

especially is this so when the thought of a distant period is being pursued. The evidence of old thought, except perhaps- when one limits oneself to the understanding of a particular book, or of a particular author, is inevitably inconclusive. The historian gathers all the details he can muster - but who knows what will be turned up tomorrow in some unlikely attic? 9° I will have more to say on this occasion about the nature of history, as well as about the use and abuse of attics. Mr. Levy concluded in his 1960 study that there was, in late Eighteenth-Century America, an almost universal acceptance not of our modern notion of freedom of the press but rather of William Blackstone's common- law formulation. Blackstone had written in the 1760s: The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity .... But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free-will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or enquiry: liberty of private sentiments is still left; the disseminating, or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects. 91 My critique of Mr. Levy's thesis included posing the following questions: What did the thoughtful men of 1791 think when the States ratified the First Amendment? Were they moved by the many repetitions of the usual Blackstonian formula by lawyers and judges who had been taught it in their monarchical youth? Or did they regard the formulation that dissented from Blackstone 92 as one which fit in better with a republican regime?

90. Id. at 37; see infra text accompanying note 105. 91. See ANASTAPLO, The Constitutionalist, supra note 3, at 94. 92. ANASTAPLO, HuMAN BEING AND CrrIZEN, supra note 5, at 39. 2020 TEXAS TECH LA W REVIEW [Vol. 21:1941

I followed up these questions with these arguments: We should further notice that many of the quotations, in which the Blackstonian position is endorsed, are evidently directed at others who had challenged it, perhaps even challenged it without troubling to learn its precise details. That is, one is obliged to ask what was the understanding of freedom of the press enter- tained by the ordinary citizen of the country, by the people who ratified the First Amendment. It should be remembered that the Bill of Rights is said to have been written and adopted in conformity with public demand. Mr. Levy discounts the extent of that demand, suggesting that the opponents of the Constitution thought the lack of a Bill of Rights could be "dramatically popularized," that they could use this omission as a stick with which to beat the proposed Constitution. But why could something thus be made of such an omission, why could it be dramatized and popularized, if not because the public had notions on this subject somewhat at variance with the Black- stonian supporters of the Constitution? 93 -Further on in my 1963 review I made these observations, which argued from the republican character of the American regime in the late Eighteenth Century: We find, on the eve of the ratification of the present Constitution, a most devastating and sometimes unfair attack throughout the country on the then-existing constitution, the Articles of Confed- eration. Technically, this too was seditious libel under the Black- stonian view - but evidently no question was raised about the propriety or legality of such attacks. It seems to have been generally understood that it was up to the people to choose between alternative constitutions, an option guaranteed to the people by the Declaration of Independence. Indeed, we see in the people's discussion of such issues an analogue to the immunity traditionally enjoyed by members of the legislative assembly to discuss freely and without threat of subsequent penalty any matter before the assembly. The people, as sovereign in the new regime, are entitled to and require a like freedom of speech in the conduct of their political affairs. "The first born of American rights," a Virginia legislator argued in 1798, "was the free examination of public servants.' 94

93. Id. at 39-40. 94. Id. at 40; see supra note 82. 1990] FIRST AMENDMENT: EXPLORATIONS 2021

So much, at least for the moment, for my 1963 critique of Legacy of Suppression. The dust jacket of Mr. Levy's recently revised book recalls Legacy of Suppression in this fashion: The original book ignited a huge debate, mainly because Levy had argued that the First Amendment, as originally conceived, was not the bulwark of the free press that many thought it to be. In that work, Levy concluded that neither the American Revolu- tion nor the First Amendment's framers had intended to overturn the common law of seditious libel, the principal means of stifling political dissent. The dust jacket continues (in announcing the revision, Emergence of a Free Press): While retaining that basic view, Levy now notes - on the basis of additional research - that the early press was, in practice, far more robust and rambunctious in its criticisms of public measures and officials than the existing laws and theoretical tradition would seem to have allowed. Mr. Levy, in a recent letter to me, identified pages 271-274 as "the heart" of his new book. He particularly called my attention to the following paragraph as setting "the tone and thesis for the modifications" to be found in his revised book: When the framers of the First Amendment provided that Congress shall not abridge the freedom of the press they could only have meant to protect the press with which they were familiar and as it operated at the time. They constitutionally guaranteed the practice of freedom of the press. They did not adopt its legal definition as found in Blackstone or in the views of libertarian theorists. By freedom of the press the Framers meant a right to engage in rasping, corrosive, and offensive discussions on all topics of public interest. The English common-law definition had become unsuitable, and libertarian theory had not caught up with press practice. Government in the United States derived from the people, who reserved a right to alter it, and the government was accountable to the people. That required a broader legal concept of freedom of the press than existed in England, where the monarch was a hereditary ruler not accountable to the people and the House of Lords too was not elected or accountable. Glimmerings of a broader libertarian theory existed but did not systematically emerge until 1798. 91

95. ANASATAPLO, HumAN BEING AND CITIZEN, supra note 5, at 272; Letter from Mr. Levy to George Anastaplo (Jan. 28, 1986). 2022 TEXAS TECH LAW REVIEW [Vol. 21:1941

With these observations Mr. Levy seems to me to have substantially accepted, as a practical matter, the kind of position I was making in 1963 - that is, except for the concluding sentence in the paragraph I have just quoted, "Glimmerings of a broader libertarian theory existed but did not systematically emerge until 1798." Whether I agree with this depends in part on what one means by "systematically emerge." About this, too, I will have more to say.

ii. I began my 1963 talk here in Binghamton with a story used to illustrate "the meaning of America." Additional stories are called for on this occasion in my effort to suggest to you how to think about both the First Amendment and its students. Although Mr. Levy and I had corresponded back in the 1960s, we had not met before a Tocqueville conference at the Claremont Institute in January 1985 brought us together. He told me, during a meal we had on that occasion, that he had expected me to be a much bigger man (physically, I hope) than he found me. (I am used to this sort of thing: Constantine Karamanlis, then a former prime minister of Greece and thereafter its president, once told a daughter of mine in my presence that one would not expect much of me from my appearance. I believe it was on that occasion that I told him, after a nice lunch in his apartment, that he ran the best Greek restaurant in Paris.) I tried to make myself look bigger to Mr. Levy by reporting that I had included his Legacy of Suppression in the bibliography I had prepared for the article on censorship I had just had published in the Encyclopedia Britannica.9 I then learned from Mr. Levy that he was about to publish, as Emergence of a Free Press,97 a considerably revised version of his Legacy book. And, he reported, his revisions had been somewhat influenced by criticisms such as mine of his 1960 volume. Sure

96. My article on censorship was first published in the 1985 printing of the Fifteenth Edition of the Encyclopedia Britannica (and revised by me in 1986). Mr. Karamanlis and I had gotten to know each other because of my publications which had been critical of the support provided by the American government to the military usurpers in Greece. I was twice declared persona non grata by the Greek Colonels during their seven years in power. See ANASTAPLO, HUMAN BEnIO AND CrrlzEN, supra note 5, at 3-7; supra notes 71, 83; infra text accompanying notes Ill & 191. 97. L. LEwv, EMERGENCE OF A FaE PREss (1985) [hereinafter LEVY, EMERGENCE]. 1990] FIRST AMENDMENT: EXPLORATIONS 2023 enough, he refers in his preface to the Emergence book, both to my review of his Legacy (which was my 1963 Binghamton talk adapted for publication in the New York University Law Review in 1964) and to my discussion of his book in my 1971 book, The Constitu- tionalist: Notes on the First Amendment.98 I had known nothing of the impending publication of Emergence of a Free Press, just as Mr. Levy had not known that my New York University Law Review critique had been published, in its original Binghamton form, in my 1975 book, Human Being and Citizen: Essays on Virtue, Freedom and the Common Good. Mr. Levy told me that he had long been puzzled about why the New York University Law Review had published two reviews of his Legacy book, one in 1961 and mine in 1964. The earlier reviewer had judged Mr. Levy's method as "sound" and his general conclusions as "well-supported." 99 Its final paragraph included these observations: Criticisms aside, the book presents a persuasive case for its thesis and more. Devoted to a limited period of history though it is, it presents in a meaningful context the fundamental issues and challenges implicit in the protection of free expression.1°° Mr. Levy's puzzle was something to which I happened to be in the position to offer a solution, a solution which he would have found himself if he had happened to come upon the Human Being and Citizen version of my review of his book, where I noted how the review came to be published in the New York University Law Review. 01 I had sent to Justice Hugo L. Black of the United States Supreme Court a copy of the lecture I had given here at Binghamton in 1963. He, it seems, recommended the lecture to Professor Edmond Cahn of the New York University Law School, who in turn recommended it to the editors of the law review at his law school, who got in touch with me about it, even though they had already published a review of the Legacy book. (I do not believe I had ever heard of the earlier review until Mr. Levy mentioned it to me last January in Claremont.) Mr. Levy's preface for the Emergence book reports that Justice Black had been very much concerned about the Legacy book, ex-

98. Id. at xiv n. 11: 99. Cound, Book Review, 36 N.Y.U. L. REV. 253, 255 (1961). 100. Id. at 257. 101. ANASTAPLO, HuMAN BEil4G AND CITZMN, supra note 5, at 248 n. 10. 2024 TEXAS TECH LA W REVIEW [Vol. 21:1941 pressing his dismay to his old friend, Professor Cahn. It seems that my review of the Legacy book appealed to him, especially since (as Mr. Levy reports in his Emergence preface) Justice Black had already had one of his law clerks check out, to no avail, every fact and source in the Legacy book for historical errors. 10 2 I suspect that my review of the Legacy book particularly appealed to Justice Black because it went beyond technical historical questions to the fundamental presuppositions of Mr. Levy's book. Justice Black evidently felt in his bones that Mr. Levy's thesis could not be right, even though (as Mr. Levy reports in Emergence) his unconventional thesis became the new orthodoxy.

ll. Of course, Justice Black was himself interested in history and read extensively in historical texts. But neither he, nor Alexander Meiklejohn, upon whom he relied in First Amendment matters, believed that history could provide the last word in this field.'03 I believe that Justice Black's instincts were sound: he would check out the "history," if possible, even as he sensed that the institutions and the very spirit of the country called for a far more expansive freedom of speech and of the press than Mr. Levy's research seemed to support. My own reservations about history itself were more important to my assessment of the Levy book in 1963 than any specialized information I had, or might have acquired, about the period. So much is this so that I do not believe that the issues have changed much since Legacy of Suppression was published, nor do I expect them to change much, no matter what data are added to the considerable "historical" material we have long had. Whether or not Mr. Levy continues to hold his original position, that position (with its emphasis upon "history" rather thanupon "political philosophy") is no doubt still held by others, and hence should be challenged from time to time. Mr. Levy summed up our original differences nicely when he wrote to me, in commenting two decades ago upon my review of his book, that he dealt more in history and I more in poetry. In my response to him I drew on Aristotle's Poetics: "Poetry

102. LEvY, EMERGENCE, supra note 97, at xvii-xviii. 103. See id. at xiv n. 11; see also Sharp, Crosskey, Anastaplo and Meiklejohn on the United States Constitution, U. Cm. L. SCH. REc., Spring 1973, at 3; supra note 48. 1990] FIRST AMENDMENT: EXPLORATIONS 2025

is something more philosophical and of graver import than history, since its statements are of the nature of universals, whereas those of history are singulars."l°4 Insofar as history is more dependent on singulars, or particulars, it is much more susceptible to chance than is either poetry or philosophy. Chance may be seen both in what does happen and in what is learned about what has happened. Even so, I did rely upon my general sense of the times in which the First Amendment was drafted, drawing upon what any student of the period can readily notice. It was obvious to me that whatever the formal definitions of "freedom of the press" might then have been, Americans had exercised from 1760 on (if not even long before) an exuberant and virtually unrestrained freedom of the press. It seemed to me two decades ago, and still seems to me today, that in trying to describe what freedom of the press meant to those people, considerable weight should be given to what they did year in and year out, and did with a sense that they were clearly entitled to do it (that is, not furtively or with a bad conscience, but rather as a matter of right). I had asked in 1963, "The historian gathers all the details he can muster - but who knows what will be turned up tomorrow in some unlikely attic?"' 5 The attic in this case, it turned out somewhat to my surprise, was Mr. Levy's own well-stocked memory: for he had had all along an intimate knowledge (much better than mine will ever be, I confess) of the newspaper and pamphlet publications of the Founding Period. But because of passions and chance circumstances to which I will return, he evidently did not appreciate the import of what he "knew" so well. Two decades later it does not seem that anything substantial has been added to the original materials available in the 1960s on this subject: the critical problem still is to determine what principles should be applied to the available materials. Should not the massive evidence long available to everyone about the Founding Period have shown anyone looking at the First Amend- ment that Blackstone simply was not enough here? Also, did not the

104. See ARISTOTLE, POETICS 1451b5; ANASTAPLO, HumAN BEING AND CrTZEN, supra note 5, at 248 n. 13; see also Berns, Aristotle's Poetics, in ANCIENTS AND MODERNS 70 n. 1 (J. Cropsey ed. 1964); supra note 1. 105. ANASTAPLO, HuMAN BEING AND CITIZEN, supra note 5, at 37; see supra text accompanying note 90. 2026 TEXAS TECH LAW REVIEW [Vol. 21:1941 debates over the Sedition Act of 1798 indicate what had long been deep in the American soul? Mr. Levy notices, with justifiable pride, that his Legacy of Suppression was cited by Justice William Brennan in New York Times Co. v. Sullivan, when the Justice said that "the great controversy over the Sedition Act of 1798 . . . first crystallized a national awareness of the central meaning of the First Amend- ment.' '0 I do not believe, however, that Mr. Levy appreciates the extent to which Justice Brennan referred, by the use of "crystallized," to the making explicit in 1798-1800 of what had been implicit and very much acted upon between 1760 and 1798 with respect to the free and full public discussion of public issues. In a sense, then, the 1798 Sedition Act was an attempt, promoted by partisan passions, to turn the clock back almost a half century, back to 1760 and before. Mr. Levy's own reconsideration of the massive evidence that had long been in his possession with respect to the uninhibited American press of the period seems to me to support, and even require, the conclusions I have long argued for as to the originally- intended meaning of the First Amendment guarantee of "freedom of speech [and] of the press."

iv. Central to my critique of the Levy thesis has been my sense of the character of the American regime. The guidance that ultimately matters here may not be the formal rules given lip service, as Blackstone's rules evidently were, but rather that understanding which was deeply embedded in the American way of life. The American approach to freedom-of-the-press problems is reflected in an assurance in the Pennsylvania Constitution of 1776: "The printing presses shall be free to every person who undertakes to examine the pro- 1 7 ceedings of the legislature, or any part of government." Indeed, one can wonder how much the repetition of the old rules was a desperate attempt by some well-established people to stop the quite open practices of their fellow-citizens. 08 Thus, we can again see that it might be a question of just how one reads the evidence

106. New York Times Co. v. Sullivan, 376 U.S. 245, 273 (1964); see LEVY, EmERGENCE, supra note 97, at xix. 107. Constitution of Pennsylvania, 1776, § 35. Cf. W. KENDALL, CONTRA MUNDuM 295, 298 n. 52 (1971). 108. See, e.g., Benjamin Franklin in KENDALL, supra note 107, at 295. 1990] FIRST AMENDMENT: EXPLORATIONS 2027 available to everyone. No doubt, the efforts to stem the tide were prompted by the recognition, evident in the old rules, of the harm that uninhibited speech can do. That is, freedom is not without its risks. Illustrative of how the available evidence may be read, or misread, depending upon one's preconceptions, is the following story: A neighbor of ours has a sensitive alarm on his automobile which can blare away for an hour or more when it is triggered. It did this the other night, without provocation, and the neighbor was not home to turn it off immediately. Someone who had vainly tried to stop the noise from outside the car finally took revenge by wrenching off the windshield wipers. The following morning the owner returned to his car, noticed the damage done, and observed, "It is a good thing I have this alarm: someone tried to break into my car and was scared off, having to settle for the windshield wipers." What, then, is the character of the American regime? The Declaration of Independence - and not only its right of revolution - implies that the people have the right, even the duty, to examine fully and openly all public affairs. This may be seen in the self- confident way the American people conducted their affairs, both locally and nationally, once the Revolution began. The preparation, consideration and ratification of the Constitution of 1787 further exhibited such conduct. And so I could say, in my 1963 review of Legacy of Suppression: A republican regime, especially one of such territorial scope and made up of such diverse elements as that in America, required (if it was to prosper) a national standard of freedom of speech and of the press which permitted (so far as the federal government was concerned, at least) a truly unfettered discussion of all public issues. This, it seems to me, was implied in the Constitution from the beginning, even before the Bill of Rights amendments were added. It is to this consideration of the nature of government, and especially of republican government, that one can direct the most fruitful inquiry. And it is to this, not primarily to an attempted measurement of the accepted opinions in the community, that American legislators addressed themselves when the constitutionality and the expediency of the Sedition Act were debated. ,09 Thus, reliance upon and recourse to freedom of the press did not depend on the Bill of Rights or its First Amendment. This is

109. ANASTAPLO, HuMAN BEING AND CmIZEN, supra note 5, at 41. 2028 TEXAS TECH LA W REVIEW [Vol. 21:1941 not to suggest that Blackstone was thoroughly repudiated: he did remain, for more than a century, the most reliable guide to what the common law provided; and the common law remained, as it has to this day, very much part of the law of the Americans. But the common law, although retained after the Revolution, was kept with appropriate modifications because of the change in the form of government. Monarchical features were purged, treason was rede- fined, and such aristocratic provisions as primogeniture were abolished. Similar adaptations were made, in effect, with respect to the freedom of discussing public affairs. Thus, one adaptation of the old English ways was the claim on behalf of the American people as a whole of that Parliamentary "freedom of speech" which had been treasured by the House of Commons. This pointed up the importance of unfettered discussion, in order to permit a full examination of the issues by the sovereign body, the people at large, which would ultimately have to pass upon the issues of the day. It should be evident that vigorous discussion of issues is apt to look at times like an attack upon the system itself, perhaps even as treason. This bears upon our understanding of such attempts at self- preservation as the 1940 Smith Act pursuant to which Communist Party leaders were prosecuted in the late 1940s and the 1950s. In our own time, conservatives can appear to some liberals as grossly selfish, while liberals can appear to some conservatives as perhaps disloyal. Yet is it not obvious that we all need to hear what the various factions among us have to say if we are to have an opportunity to choose sensibly in governing ourselves as a people? Why should not that have been obvious as well at the time the First Amendment was prepared in 1789, especially since the American people had had to rely upon an extensive freedom of speech and of the press for more than a decade, first in winning their independence and thereafter in governing themselves? I offer, then, as a proper reading of the First Amendment this summary of my argument in my 1971 book, The Constitutionalist: The First Amendment to the Constitution prohibits Congress, in its law-making capacity, from cutting down in any way or for any reason freedom of speech and of the press. The extent of this freedom is to be measured not merely by the common-law treatises and cases available on December 15, 1791 - the date of the ratification of the First Amendment - but also by the general understanding and practice of the people of the United States who insisted upon, had written for them, and ratified (through 1990] FIRST AMENDMENT: EXPLORATIONS 2029.

their State legislatures) the First Amendment. An important indication of the extent of this freedom is to be seen in the teachings of the Declaration of Independence and in the events leading up to the Revolution. Although the prohibition in the First Amendment is absolute - we see here a restraint upon Congress that is unqualified, among restraints that are qualified - the absolute prohibition does not relate to all forms of expression but only to that which the terms "freedom of speech, or of the press" were then taken to encom- pass, political speech, speech having to do with the duties and concerns of self-governing citizens. Thus, for example, this constitutional provision is not primarily or directly concerned with what we now call artistic expression or with the problems of obscenity. Rather, the First Amendment acknowledges that the sovereign citizen has the right freely to discuss the public business, a privilege theretofore claimed only for members of legislative bodies. "0

V. It should be acknowledged that, whatever reservations I may have about the historian's approach, there continues to be much of considerable use in Legacy of Suppression, just as there now is in Emergence of a Free Press. Mr. Levy's work amasses considerable evidence and presents, in an instructive manner, the "worst case" for the libertarian to take account of. In addition, Mr. Levy helps us appreciate the importance in Eighteenth-Century jurisprudence of the "no previous restraints" rule, the rule which Blackstone had argued was at the heart of the English understanding of "liberty of the press." I had occasion, during a Summer 1967 visit in Athens with the beleaguered Helen Vlachou (the Greek publisher who had refused to publish her newspapers after a military clique had taken over her country in April of that year), to prepare at her request the following memorandum: Anyone familiar with the Anglo-American tradition of "liberty of the press" appreciates the importance for friends of liberty of

110. ANASTAPLO, THE CoNsTrruTioNALST, supra note 3, at 15-16. I indicate in my commentary on the Constitution both the critical place of the common law in the American constitutional system and the extent to which various of the Bill of Rights guarantees were taken for granted by the American people before the ratification of the first ten amendments. See ANASTAPLO, CoNsTrrnioN OF 1787, supra note 2, at 11, 66-69, 124-48, 227; supra note 2; infra note 157 and accompanying text; infra note 193. 2030 TEXAS TECH LA W REVIEW [Vol. 21:1941

an insistence upon "no previous restraints." That is, the effort in the 18th and 19th Centuries to establish and secure the liberty of the press was, in large part, an effort to protect the right of anyone to publish whatever he chose without any prior control by government of the contents of such publication. It was accepted that there could be, when something was published contrary to the law of the time or disliked by the government of the day, prosecution of the offending publisher. But it was nevertheless thought that such prosecution was not as destructive of the common good or as offensive to personal dignity as a prior review by the government of the contents of publication. Indeed, some publishers have always preferred the safety of censorship to the risk of undertaking the obligation of deciding in each case what could be responsibly and safely published. What is or should be prosecuted after publication depends on particular circumstances, both social and personal. It should be remembered that the censor's prior restraint may be completely arbitrary and without any challenge, while the punishment for publication has at least the safeguard (except in the most oppressive regimes) of some judicial process in open court. It should be remembered as well that self-regulation recognizes the dignity and sense of responsibility of the publisher. In the best of all worlds, there would be neither censorship (previous restraint) nor any punishment for honest publication.. But it is certainly important that there at least be no censorship, leaving the publisher free to run the risks of honest publication.", It is significant that these observations, drawing upon the centuries- old North Atlantic tradition, made sense to Mrs. Vlachou (a conservative), who had been obliged to work out similar arguments that summer on the shores of the Mediterranean when she resolutely refused to publish her newspapers under censorship. The abolition of a system of censorship is indeed important in the emergence of a free press. So is the recognition of the right of criminal-trial judges to pass upon attempts at prosecution for improper publication. 1 12 But we now know - and it was evident that

111. ANASTAPLO, THE CONSTrrroNALIST, supra note 3, at 680; see also AASTPLo, HumAN BEING AND CIzEN, supra note 5, at 9; Anastaplo, What Is Still Wrong with George Anastaplo? A Sequel to 366 U.S. 82 (1961), 35 DE PAtJ.. L. REv. 551, 645 (1986) [hereinafter Anastaplo, Still Wrong]; supra text accompanying note 91. On my publications about Greek affairs, see supra note 71. See also supra note 96; infra note 114; infra note 191 and accompanying text. 112. Mr. Levy has useful things to tell us here and elsewhere (see infra note 131) about 1990] FIRST AMENDMENT: EXPLORATIONS 2031

Americans in the late Eighteenth Century also recognized and very much acted on the recognition - that freedom of discussion of public affairs depends on more than such safeguards as "no previous restraints" and the powers of juries, however important those safeguards are. It has long been recognized, for example, that majorities have to be subject to public questioning, especially when those majorities control both governments and juries. This means that there must be substantive standards which place limits upon what even a popular government might do, after publication as well as before. Critical to the American development was the linking, as in the First Amendment, of "freedom of speech" to "freedom of the press." However important the "no previous restraints" rule was for "liberty of the press," it obviously could not have been of significance in any definition of "freedom of speech," since talking about public affairs in everyday life is hardly likely to be subjected to systematic licensing. Rather, the term "freedom of speech" looks back, as I have indicated, to the parliamentary privilege, whereby legislators are assured full immunity from prosecution elsewhere for what they say in the legislature." 3 When the American people became effectively sovereign, as the Declaration of Independence and their subsequent constitutions (State and National) recognized, a virtually unlimited right to discuss public affairs was required by the very nature of the regime, however often this principle has been violated 4 in practice."1 Two sets of improper responses to the American free-speech development have to be reckoned with. There are those who carry this development further than is required; and there are those who do not carry it as far as is required. Those who carry this development further than is required argue that virtually no publication may be regulated by government. So they insist that obscenity, defamation and commercial speech are all entitled to much the same kind of protection as political discourse. This is true, so far as the "no previous restraints" rule applies, for

the 1735 trial of John Peter Zenger and the precedent it established in North America on behalf of the power of juries. See 1. THE ANNALS OF AMERICA 397 (ENCYCLOPEDIA BRITANNICA, 1976). 113. See infra text accompanying note 155; see also ANASTPLO, THE CONSTITUTIONALIST, supra note 3, at 538-39. 114. See Anastaplo, Freedom of Speech and the Silence of the Law, 64 TEX. L. Rav. 443, 455-56 n. 54 (1985). On previous restraints, see id. at 456-60. 2032 TEXAS TECH LA W REVIEW [Vol. 21:1941 the negation of the power of censorship does protect one's right to publish without advance permission virtually anything one chooses. It becomes easy, almost natural, to defend as beyond government supervision whatever one cannot be prevented from publishing in the first place. But the substantive standards rooted in the parliamentary "freedom of speech" prototype are intimately linked to the ability of a sovereign body to discuss and to pass upon public affairs. Obscenity, defamation, commercial speech, and the like usually have little to do with that. The test of a free country is still whether public affairs, including the doings of government, can be fully and freely discussed in public. This is not to deny that many attempted restraints upon obscenity and the like are foolish and even harmful - and these are something we should be completely free to discuss and criticize, especially if the suppression of obscenity and the like should threaten to "spill over" into dangerous restraints upon public discourse. The "poetry" of this regime requires vigilance, but surely not at the cost of denying the legitimacy of a public concern for public decency, moral character and fair dealing." 5 On the other hand, there are those who do not carry the American development as far as is required, especially those who have been led to believe that the "history" of this regime "proves" that a virtually unlimited right to discuss public affairs was never intended by the framers of the First Amendment. 1 6 Those who have been thus led include the judges and scholars who have relied to a considerable extent upon Mr. Levy's Legacy of Suppression, a book that has been particularly made much of by conservatives because Mr. Levy himself is an avowed liberal. Among those who relied upon Mr. Levy's Legacy have been Justice Felix Frankfurter and Professors Willmoore Kendall, Herbert Storing and Walter Berns, all quite respectable students of American government who have not seen the First Amendment in the expansive terms used by students such as Alexander Meiklejohn and Hugo L. Black." 7 It will be interesting to see whether the conservatives and their students who have relied so

115. See ANASTAPLO, HuMAN BEING AND CITIZEN, supra note 5, at 117-38; Anastaplo, How to Read, supra note 5, at 37-55. 116. Anastaplo, Misapprehensions and the First Amendment, in To SECURE Ti BLESSINGS OF LmERTY 146 (S.B. Thurow ed. 1988). 117. See Anastaplo, Mr. Justice Black, His Generous Common Sense, and the Bar Ad- mission Cases, 9 Sw. U.L. REv. 977, 1046-1048 (1977) [hereinafter Anastaplo, Mr. Justice Black]; see also supra note 103; cf. supra note 27; infra text accompanying note 186. 1990] FIRST AMENDMENT: EXPLORATIONS 2033 much upon Mr. Levy's research will moderate their position on the First Amendment now that -he has backed away from his original thesis. Of course, we did not need Mr. Levy's research to determine what the character of the American regime is under the Constitution. Nor did we need it to see that political repression does not really work among us, that it does little good and much harm. Among its consequences is to help undermine legitimate regulations (say, of obscenity) by calling government itself into question. Thus, the repression of political discussion tends to bring out the worst in the American people, opening the way either to self-destructive tyranny or to mindless individuality.

Vi. Repressiveness can bring out the worst in oppressors and victims alike. ' This is evident in another story about Mr. Levy's work and people's response to it, a story told in the preface to his Emergence of a Free Press, which it is instructive to reproduce here at length: Legacy of Suppression was not a book I had planned to write. It was the result of chance and, I regret to say, spite. In 1957 I had a Guggenheim fellowship for the purpose of exploring the origins of the Fifth Amendment, specifically, the right against compulsory self-incrimination. But, at that time an opportunity presented itself to write for money - $1000 for about six weeks of work. That seemed an enormous amount because the Guggenheim, the sole source of my support, then paid $4000 for the year. Thanks to Henry Steele Commager's influence, The Fund for the Republic Inc., which later called itself The Center for Democratic Institu- tions, commissioned me to write a memorandum on the original meanings of the First Amendment's clauses. Robert M. Hutchins, who headed The Fund, liked to hold formal conferences with the nation's leading intellectuals on urgent problems of the times, and he thought that a scholarly memorandum on the historical background of the First Amendment would be useful to have at hand in the event that a historical question arose in the course of some discussion. My own opinion was that Zechariah Chafee's Free Speech in the United States and Anson Phelps Stokes's Church and State in the United States provided

118. See my account of the European witch trials, Anastaplo, Church and State, supra note 71, at 65-86. 2034 TEXAS TECH LA W REVIEW [Vol. 21:1941

all the data needed to resolve a question concerning the intentions of the Framers of the First Amendment. But Hutchins preferred a more convenient packaging of the information based on a fresh look at the primary sources. Despite my strong liberal opinions on the First Amendment, I felt obligated to give an objective statement of the evidence and of the conclusions that they dictated. I wrote a memorandum of about seventy-five pages, two-thirds of which dealt with the clauses on religion and bore out what all liberals know, namely, that the Framers intended a high wall of separation between church and state and guaranteed liberty of conscience even for non-Christians and non-believers; but the twenty-five pages or so on the free speech-free press clause flatly contradicted liberal assumptions and their champions such as Chafee and Justices Oliver Wendell Holmes, Louis D. Brandeis, Hugo L. Black, and William 0. Douglas. To my surprise, I discovered that the Framers had a constricted view of the scope of permissible political expression. The Fund was enthusiastic about my work on the church-state and religious liberty clauses, but not the rest. I was summoned to New York for a discussion. Officials of The Fund wanted me to polish the work on the religion clauses, and they would publish it as a handsome pamphlet in their series called Basic Issues. But, Hutchins clearly disapproved of my work on the speech-press clause. He made it clear to me that the pamphlet would not include that section of the work." 9 Notice those fateful New York offices of the Hutchins organization. They will figure also in a story I will be telling soon. Mr. Levy continues: Perhaps I was overly sensitive, but I felt that I was being subjected to censorship by one of the nation's foremost strongholds of civil liberties. My fellow liberals seemed to be suppressing scholarship that did not support their presuppositions. I was angry and decided to strike back by giving what I thought would be maximum publicity to the material that The Fund rejected. Deferring my research on the book that became The Origins of the Fifth

119. LEVY, EMERGENCE, supra note 97, at vii-viii. Whether Justice Holmes, the originator of the mischievous "clear and present danger" rule, should be considered a "champion" of freedom of speech can be debated. See, e.g., ANASTAPLO, Tim CONSTrruTIONAuST, supra note 3, passim; see also infra note 218. For a different reading from Mr. Levy's of "the church- state and religious liberty clauses," see Anastaplo, The Religion Clauses of the First Amend- ment, 11 MEM. ST. U. L. Rv. 151 (1981) [hereinafter Anastaplo, Religion Clauses]; supra note 118. 1990] FIRST AMENDMENT: EXPLORATIONS 2035

Amendment, I decided to write an article of approximately fifty pages on the original meaning of the free speech-press clause. I planned to submit it to the Harvard Law Review. I deepened my research on that clause and wrote the article, but before submitting it for publication I sent copies to Commager and to Mark Howe at Harvard Law School, a masterly legal historian. Commager, who was distressed by my findings, was worried whether they provided scholarly ammunition for misuse by McCarthyites. Above all, however, he thought I should not rush into print; he argued that if I continued digging into the sources I very likely would find countervailing evidence that would support the Holmes-Chafee traditional liberal position. Howe too believed that I should continue my research. He asked me questions about matters that I had not explored, about colonial English backgrounds that I had slighted, and about assumptions underlying some of the positions which I had taken. In effect he was asking me to expand the article. So I went back to further research, and instead of producing a law review article I found myself writing a book, which turned out to be Legacy of Suppression: Freedom of Speech and Press in Early American History. In my acknowledgments I maliciously thanked The Fund for the Republic for having helped make the book possible, and it was not until 1972, in a book collecting various of my own essays, that I published for the first time the piece called "No Establishment of Religion: The Original Under- standing," which constituted the rest of the original memorandum The Fund had liked. Thus I wrote Legacy of Suppression to spite Hutchins and The Fund and as a result of a chance opportunity to explore the subject. The title I chose and the rather strong theme I developed in that book reflected both my shock at discovering the neglected evidence and my indignation at Hutchins and The Fund for attempting to suppress my work. As a result I overdid it. I had a novel position, which I overstated. 120 And so, a quarter-century later, Mr. Levy is big enough to admit that he "overdid it." Even so, I must wonder whether Mr. Levy even yet appreciates what happened then. For one thing, he does not seem to allow for the possibility that Mr. Hutchins might well have sensed that there was something dubious intellectually about Mr. Levy's argument, however meticulous his collection of evidence might

120. LEvy, EMERGENCE, supra note 97, at xviii-ix. 2036 TEXAS TECH LAW REVIEW [Vol. 21:1941 have been as a historian. (Mr. Hutchins himself, it should be remembered, was a longtime student of the law, having once been Dean of the Yale Law School.) Also, it is evident even from Mr. Levy's account that Mr. Hutchins was reluctant, in 1957, to do or to say anything that would lend support to the forces of repression which were then abroad in the land. Certainly, he did not want to seem to endorse a perhaps mischievous thesis that even its author has since come to recognize as somewhat questionable. (This is not to say that Mr. Hutchins was merely a doctrinaire libertarian: thus, he was later troubled [or so I recall his telling me] by the restraints placed by the Supreme Court upon the regulation of obscenity. 121) Those were rough times, however, and Mr. Hutchins probably tried to do his best in the circumstances. Early in my remarks on this occasion I was able to fill out Mr. Levy's own story by adding to it my account of the contribution by Justice Black to the law journal publication of my review of Legacy of Suppression. Curiously enough, I also happen to be in a position to fill out Mr. Levy's story about his highhanded treatment by Mr. Hutchins and his Fund for the Republic. For that which happened to Mr. Levy between 1957 and 1960 had been anticipated by something similar which had happened to me in 1954-1955. In fact, I gather from Mr. Levy's account that he was in effect commissioned to do a study for The Fund for the Republic which was quite similar to one which had been supposedly arranged for me to do a couple of years earlier. Professor Malcolm P. Sharp, of the University of Chicago Law School, had negotiated with Mr. Hutchins, an old friend of his, a grant which would have permitted me to work at least two years on the drafting and the original meaning of the First Amendment. These negotiations were, so far as I know, conducted entirely by telephone, with the understanding that my written application to The Fund for the Republic would be a mere formality. So certain of success was Mr. Sharp, a most cautious man, that I was willing to give up my job as a research assistant at the Industrial Relations Center at the University of Chicago in order to begin to do this work. But first I would take my accumulated vacation time and go with my wife and (then) two children to Europe, where I would do (among other things) some work in French and English libraries.

121. I believe Mr. Hutchins referred to Smith v. California, 361 U.S. 147 (1959). 19901 FIRST AMENDMENT: EXPLORATIONS 2037

Alas I, like Mr. Levy, had the- rug pulled out from under me in the New York offices of The Fund for the Republic. My courtesy call there, a few hours before boarding the ship for Europe, netted me the most unwelcome news that the already-submitted written application which had been understood theretofore to be merely pro forma was something that would be critical. In fact, it was clear to me from that conversation (not with Mr. Hutchins, but with one of his'more unattractive lieutenants) that something had gone wrong with the deal. I wrote Mr. Sharp to that effect before boarding the ship. This was confirmed by a Fund for the Republic letter written to me abroad weeks later. Of course, Mr. Sharp was most distressed, especially since he and I had relied upon Mr. Hutchins' word. But nothing could be done, except to learn that Mr. Hutchins had evidently come to feel that the association of The Fund for the Republic with someone as controversial as George Anastaplo was then could not do his organization any good at a time when it was under attack by Congressional investigating committees. When I returned from Europe several months later, I was reduced to driving a taxi-cab until the Industrial Relations Center saw fit to'hire me once again. This was a time when I was eminently unemployable because of my bar admission controversy. 22 It was for me a most salutary experience, and not only because it taught me never again to place my trust in princes. Much is to be said, I also learned, for getting certain contracts in writing, even when dealing with honorable men. 123 I have reason to believe that Mr. Hutchins was not proud of what he had been "forced" to do.'24 (He was later to tell me, the last time we talked at the faculty club at the University of Chicago not long before his death in 1979, that he could always expect the truth from me, even when it was something he did not want to hear.

122. See infra Part IV, Sections ii-v; see also ANASTAPLO, THE CONSTnlUONALIST, supra note 3, at 337-40. 123. After this and other experiences, I find particularly attractive that form of written contract known as academic tenure. 124. 1 do not mean to suggest that this episode was something that Mr. Hutchins brooded over. Harry Ashmore, Mr. Hutchins's biographer, has recently told me that he does not recall any reference to this episode in the Hutchins papers he has studied. This is consistent with the fact that the arrangement was made by telephone between Mr. Hutchins and Mr. Sharp. On Mr. Hutchins and his legacy at the University of Chicago, see Anastaplo, Jacob Klein of St. John's College, Politics Department, The University of Dallas Newsletter § vi (Spring 1979). 2038 TEXAS TECH LA W REVIEW [Vol. 21:1941

I believe he meant this as a compliment.) Does not this story suggest how rough those times were - and why Mr. Hutchins was particularly sensitive about the sort of thesis Mr. Levy was offering up for publication under the auspices of his Fund for the Republic? I do not mean to suggest that Mr. Hutchins acted as he should have either in Mr. Levy's case or in mine, but what he did probably should be considered more a condemnation of the times than of him personally. The tenor of the times was such, I have indicated, as to bring out the worst in all too many people. It can be argued that both Mr. Levy and I may have been better off for what was done to us by The Fund for the Republic. Certainly Mr. Levy's reputation as a legal historian was made by his Legacy of Suppression, which evidently would not have been written but for all this. My own Constitutionalist, with its massive notes, 2 was written by someone with years of leisure time, something which I probably would not have had if I had worked according to the two- year timetable that had been arranged with The Fund for the Re- public. (Nor do I believe I would have gone on to get my rather useful doctorate if the deal with Mr. Hutchins had been honored.) There is poetic justice in the fact that the fear of repression should have kept Mr. Hutchins from getting from me something which would have been sympathetic to his interests, with the result that he got elsewhere something which was unsympathetic, thereby opening the door to even more work that he found hardly useful for the cause of liberty. How do these stories, the stuff of history, bear upon one's appraisal of Mr. Levy's work? I had never realized, before I read the Emergence preface, how much the Legacy of Suppression book was a response to personal circumstances. (That is more evident in my Constitutionalistbook, I believe.) Mr. Levy's new preface does suggest that his pique at Mr. Hutchins made the "landmark" Legacy book somewhat different in its tone and thrust (and hence its influence?) than it would otherwise have been. It is an odd feature of Mr. Levy's career that he has never seemed to be comfortable with his celebrated Legacy of Suppression. He makes it clear both in that book and elsewhere that he is an

125. One reason the notes to The Constitutionalist could become as massive as they are was that the publisher took several years between the acceptance of my original manuscript and its publication in 1971. 1990] FIRST AMENDMENT: EXPLORATIONS 2039 ardent civil libertarian, something which I have indicated made his thesis seem even more impressive to many readers. In addition, he finds it difficult to appreciate the implications of his argument in Legacy. This is illustrated, in his Emergence preface, by his characterization of Willmoore Kendall's review of Legacy as "weird," when what the conservative Mr. Kendall did with his customary exuberance was to accept and follow out the implications (for constitutional 126 interpretation) of Mr. Levy's thesis. Mr. Levy's ambivalence about his book may be indicated as well in the way he disparages Justice Black, whom he can refer to in his Emergence preface as "the passionate and self-proclaimed absolutist on free speech and press issues, who was innocent of history when he did not distort it or invent it ... ,127But, as I have suggested, Justice Black's instinct about the relevance of the professional historian here may have been sound. After all, has not Mr. Levy himself moved close to what Justice Black recognized a quarter-century ago to have been the general sense of the country in the late Eighteenth Century about freedom of speech and of the press? (Mr. Kendall does express reservations in his review of Legacy, about the adequacy 2 of Mr. Levy's political philosophy.1 1 Justice Black, on the other hand, was much more open than Mr. Levy to political philosophy, or the principles of the regime. Another way of putting all this is to observe that the historian all too often does not appreciate the presuppositions or the implications of his account.) Justice Black was, of course, primarily a man of action, not a scholar. Thus, he cared deeply about the consequences of what he said - and so would sometimes restrain himself in his public remarks. Perhaps it was too much for him to expect scholars similarly to restrain themselves, since they do march to different drummers. The stories I have told on this occasion.do suggest the limits of history, in that they expose to view the partisanship and the personal elements which can very. much affect the reliability both of the "historical record" and of the historians who make much of that record. An observation by Mr. Levy himself about the public con-

126. I have had an opportunity to examine Mr. Kendall's copy of Legacy of Suppression, which is thoroughly marked up, with many marginal expressions of appreciation of various points as "Important." 127. LEvy, EMERGENCE, supra note 97, at xvii-xviii. 128. Kendall, supra note 107, at 301. 2040 TEXAS TECH LA W REVIEW [Vol. 21 :1941 troversy at the time of the Alien and Sedition Acts of 1798 can serve to remind us of the care that must be taken with the assessment of any political statements: "Views expressed during that acrimonious time are untrustworthy because they were distinctly ad hoc in character and because partisans were even less motivated by principle 129 and precedent than usual."

vii. I had occasion, a few months ago, to sit next to the distinguished historian Henry Steele Commager for several hours during a flight across the country. It was instructive to hear with what respect and affection that venerable liberal could speak of his former student and longtime friend, Leonard Levy. 130 It is difficult to overestimate the considerable work Mr. Levy has done in legal history. The range of his interests may be seen in his recent Constitutional Opinions collection.'31 The depth of his energy may be seen in the work he has done, both as co-editor and as contributor, for a forthcoming four-volume encyclopedia of the 3 2 Constitution. Mr. Levy's openness to opinions different from his may be seen in the contributors he has gathered (along with Kenneth Karst) for the Encyclopedia. My own article for his collection, on the principles of the Constitution of the United States, takes it for granted, as does my other work, that the Constitution is well-crafted, that it is a model of precision, and that it can and should be read with an informed care. 33 I thus take issue, in effect, with what Mr. Levy says in both Legacy and Emergence, where he can say: But the Framers had a genius for studied imprecision. They were conscious of the need to phrase the Constitution in generalized terms and without a lexicographical guide, for they meant to

129. LEVY, EMERGENCE, supra note 97, at 280. 130. It is perhaps symptomatic of the limitations that historians have imposed upon themselves, in the name of scientific vigor, that Professor Commager had not been able, while Legacy of Suppression was still in manuscript, to point out the defects that some of us did as reviewers and that Mr. Levy himself eventually came to accept. 131. See L. LEVY, CONSTITUTIONAL OPINIONS: ASPECTS OF THE BILL OF RIGHTS (1986). 132. See ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION (L. Levy, K. Karst & D. Mahoney eds. 1986). 133. My article, Political Philosophy of the Constitution (the editors' title) would be better entitled, Principles of the Constitution. 1990] FIRST AMENDMENT: EXPLORATIONS 2041

outline an instrument that would serve future generations.... [T]he Constitution was purposely made to embody first ideas and sketchy notions. Detailed codes, which become obsolete with a change in the particular circumstances for which they were adopted, are avoided by men trained in the common law. They tend rather to formulate principles that are expansive and comprehensive in character. The principles and not their Framers' understanding and application of them are meant to endure. The Constitution, designed by an eighteenth-century rural society, serves as well today as ever because an antiquarian historicism that would freeze its original meaning has not guided its interpretation and was not 134 intended to. Mr. Levy's emphasis here, and elsewhere, upon "studied imprecision" is more in the tradition of Felix Frankfurter, the intellectual, than in that of Hugo Black, the statesman.'35 Mr. Levy can dismiss "antiquarian historicism;" earlier, he had disparaged any "antiquarian examination of the original meaning of the speech-and-press clause.' ' 3 6 Thus, we see here once again the difference between history and poetry, between modern scientific scholarship and old- fashioned political philosophy.

VII. SUBVERSION, THEN AND Now' 3 7 I went into a theatre as sober as could be, They gave a drunk civilian room, but 'adn't none for me; They sent me to the gallery or round the music-'alls, But when it comes to fightin', Lord! they'll shove me in the stalls! For it's Tommy this, an' Tommy that, an' "Tommy, wait outside"; But it's "Special train for Atkins" when the trooper's on the tide, The troopship's on the tide, my boys,

134. LEVY, EMERGENCE, supra note 97, at 348. 135. For my comments on the two Justices, see Anastaplo, Mr. Justice Black, supra note 117. 136. LEVY, EMERGENCE, supra note 97, at xvii (quoting from Legacy of Suppression). 137. This talk was given to a constitutional law seminar conducted by Professor Rodney Blackman at the De Paul University College of Law, Chicago, Illinois, November 4, 1987. See supra Part III. 2042 TEXAS TECH LA W REVIEW [Vol. 21:1941

the troopship's on the tide, O it's "Special train for Atkins" when the trooper's on the tide. 3 - Rudyard Kipling

Who were the people that were feared and hunted down as subversives in the 1950s? It was easy to see them as agents of Joseph Stalin, a man responsible for great evils. Many in this country were intimidated by the threat of Stalinism, especially after the shackling of Czechoslovakia in 1948. The threats posed by the Russians to the United States seemed even worse because they confronted here a people that had endured one crisis after another since 1929, if not since 1914. It took some time for us to get used to living in a world in which the Russian danger had unexpectedly become so critical. Even so, Americans had few domestic Stalinists whom they could know well enough either to like or to dislike. American Communist Party members were hard to get to know at all in the late 1940s and early 1950s. One did not go around asking one's acquaintances whether they were Communists. (A decade or two earlier Communist Party membership had evidently been less of a disability and hence was more open.) I do not recall ever having personally met anyone in those days that I could be sure was a Communist Party member at the time I knew him. There was, however, one known Communist Party member whose public career left me somewhat sympathetic to him, in human terms. That was Robert G. Thompson, one of the Communist Party leaders who was convicted in 1949 under the Smith Act. He went into hiding for a few years in order to escape the imprisonment he was eventually subjected to. What made his career rather sad was that he had distinguished himself in the Army during the Second World War, having been been awarded the Distinguished Service Cross for his heroism. I did not believe then, nor do I believe now, that the activities he was charged with by our government outweighed his gallantry as a patriot during the war. He should never have been

138. R. Kipling, Tommy, COLLECTED VERSE OF RuDYARD KIPLING 277 (1910); see Anastaplo, Still Wrong, supra note 111, at 628-29. 1990] FIRST AMENDMENT: EXPLORATIONS 2043 required to serve time in prison, whatever his political folly may 39 have been.1

ii. I knew about the Thompson career only what I had read in the 14 press. 0 I believe it can be instructive, in order better to assess what did and did not happen in the 1950s, to recall for you a Chicago leftist I did chance to know personally, a somewhat politically- harassed man who died two month ago in his late sixties, Charles G. Bloom. He, too, was a patriot, a man who had, as a navigator with the Eighth Air Force in England, flown two full tours of bombing missions over German-occupied Europe during the Second World War. I believe he was decorated for his tours of duty, but these were not matters he ever talked much about in my presence. Chuck Bloom became a loving father and a good husband, however difficult to live with he may have been at times. He was rather shy, despite his bluff manner and tough talk about the Class Struggle and the Impending Revolution. All this was consistent with his marrying off his daughter in fine style a few years ago at the South Shore Country Club, which is now run by the Chicago Park District. He earned his living as an English teacher in one of Chicago's junior colleges. Earlier he had worked on the railroad. His union membership was something he reveled in, not least because of his

139. I could write in 1965, "It was sad to observe recently the public reaction to the sentimental request of Robert G. Thompson - a Second World War hero (Distinguished Service Cross) who was subsequently imprisoned under the Smith Act as a Communist Party leader - that he be buried in Arlington Military Cemetery. Much of our patriotism these days is characterized by a lack of grace and of generosity, to say nothing of gratitude." ANASTAPLO, HuMAN BEING AND CnIZEN, supra note 5, at 266 n. 20; see infra text accompanying notes 183-88; see also supra note 1. A happier career was enjoyed by Harry Bridges, the leftist leader of the International Longshoremen's and Warehousemen's Union, after he avoided deportation in the 1940s as a subversive. See Schneiderman v. United States, 320 U.S. 118 (1943). Thus, a top management official eventually praised this notorious union leader in these terms: "He was the single most powerful and most stabilizing influence in the West Coast maritime industry, and you cannot say enough to honor this man who has never, never broken his word." Harry Bernstein, Marxist Harry Bridges, 88, Led Longshoremen's Union, Chicago Sun-Times, March 31, 1990, p. 36. See also, Wolfgang Saxon, Harry Bridges, Docks Leader, Dies at 88, New York Times, March 31, 1990, p. 11. 140. For a poignant note about the sacrifices of the Abraham Lincoln Brigade in the Spanish Civil War, see KALvEN, supra note 40, at 295. 2044 TEXAS TECH LAW REVIEW [Vol. 21:1941

New York State upbringing in the wealthy family he sometimes was rebelling from. His principal political activity, so far as I personally knew, was in local politics. He worked hard for Democratic candidates for the Chicago City Council and the Illinois General Assembly. He could be counted upon to put in long hours as a volunteer in making Chicago organizations such as the Hyde Park Coop and the Hyde Park Neighborhood Club socially useful. Perhaps most of all he yearned for the just treatment of racial and other minorities and of the poor. All in all, I remember him as a civic-minded man who served conscientiously wherever he recognized a call from the community.

ll. Much of Mr. Bloom's local community service was during the last two to three decades. Our earlier encounters featured arguments in his apartment, going back to the late 1940s on the University of Chicago campus, in which the respective merits of the United States and of the Soviet Union were debated. These were the kind of arguments, for hours at a time into the early hours of the morning, that only graduate students have either the time or the passion for. Of course, one sometimes felt trapped by such engagements; and of course, also, they could become dull. But since I often found myself virtually the only one among the guests defending the American regime, this kind of challenge could also be very instructive, especially as one was obliged to collect reports and data of one's own in order to counter those offered by one's opponents. It was only in one sense that it should be said that I was ever the only one defending the American regime - for the others were also, but in terms of what it had once been or (even more likely) in terms of what it promised to be. Besides, various of my opponents in those all-night arguments had personally endured mistreatment, such as anti-Semitism, that I had not, mistreatment which had embittered them or at least made them particularly sensitive to flaws in the American regime. This kind of experience, or response to such experience, is reflected in the record made in the bar admission controversy of Raphael Konigsberg in California. (I discuss the Konigsberg matter in Part IX of this article.) Be that as it may, the militant leftists I have known have tended to be Idealists and even Romantics. Sometimes that kept them from 1990] FIRST AMENDMENT: EXPLORATIONS 2045 noticing obvious truths, including the truth about ugly regimes around the world, even as it made them unduly critical of the American regime which had nurtured and continued, in its way, to inspire them. Still, they could be understood as dreamers who yearned for the fulfillment of American aspirations. A key question during our extended debates in the Bloom apartment was about how Stalin was to be understood. The deaths of hundreds of thousands, if not even millions, of, Russians at his hands, or at least because of his policies, could be cavalierly over- looked. Much could be made instead both of "the Great Patriotic War" against the Nazi menace and of the supposedly color-blind ethnic policy of the Soviet Union. At times, in my defense of the United States, I no doubt refused to acknowledge defects that my opponents, who were not unintelli- gent, could point out. Much more could have been made than we as young people were inclined to make of the economic systems of the United States and of the Soviet Union, and of how capitalism can contribute to political freedom. One thing I did insist upon was the much greater political freedom in the United States, as exemplified by our ability to discuss these issues as openly as we did. This led one night to a challenge from Chuck Bloom: "Do you believe the country to be so free that you would dare subscribe to the Daily Worker?" If I thought so, he added, he would pay for the subscription. I forget now how many months were offered me, but probably no more than a year. I accepted his challenge, adding (with the bravado of youth) that I would not only take whatever he gave me but would also write to the Director of the Federal Bureau of Investigation to inform him that I had become a subscriber. I remember little about the Daily Worker during my term as a subscriber. After the subscription ran out, I would see it from time to time in libraries. Nor do I remember whether I received an acknowledgment from the F.B.I. (I do recall that my letter to the Director turned up as an item in the rather tame F.B.I. file on me I inspected decades later by invoking the Freedom of Information Act.) It must have eventually became evident to both Chuck Bloom and me that neither one of us was going to convert the other - and so we tacitly agreed to differ. Whenever we talked about politics during the last two to three decades of his life, it would be about local politics and what he was doing in immediately practical ways 2046 TEXAS TECH LAW REVIEW [Vol. 21:1941

to organize his precinct and to get out the vote in favor of candidates who supported racial brotherhood and welfare programs. I do not know what influence I ever had on Chuck Bloom. 14' My arguments may have obliged him to consider his own more carefully - and my own bar admission career did win a certain respect from him, although I do not now recall ever discussing it with him. 142 Perhaps, indeed, my response to the inquisitorial character committee was in part influenced by our long arguments as graduate students: I was again insisting upon the virtues of the American regime. That is, I insisted upon acting as if I were indeed living in a free country.

iv.

This "ancient history" was recently dramatized for me by a meeting with Morton Sobell, the man sentenced to thirty years imprisonment upon being convicted as a co-defendant with Ethel and Julius Rosenberg in 1951.143 I introduced myself to him after a lecture appearance he made on the University of Chicago campus last month. He remembered that I had worked on a brief prepared by one of his lawyers, Stephen Love, who had asked me in 1954 to help him try to get Mr. Sobell out of Alcatraz, where he had been vindictively exiled by the Bureau of Prisons. Mr. Sobell remembers my efforts now more kindly than he had responded to them then - for I had heard he had not been pleased by the line of argument I had developed in my memorandum, which had appealed to the good faith and the professional integrity of the Bureau of Prisons person-

141. One can never anticipate the influence one has in such matters. See ANASTAPLO, HumAN BNo AND CIrrtZN, supra note 5, at 109-10. 142. See infra Part IX, Sections ii-v. I should note "for the record" that the only covert activity I ever knew Chuck Bloom to engage in was when he spent most of a winter day helping me move into "veterans' housing" on the University of Chicago campus. He and I did this while my wife, who was then midway in her first pregnancy, was downtown for the day, unaware that a long-awaited student-housing apartment had become available for us. He took a childlike delight in anticipating how surprised and relieved she would be upon discovering what had been done without her having had to lift a finger. (This must have been in late 1949 or early 1950.) 143. See ANASTAPLO, THE CoNsTrroNAnST, supra note 3, at 632-39; see also Anastaplo, Speed Kills: The Rosenberg Case and the Perils of Indignation, Cm. LAw., July 1979, at 19; Anastaplo, Occasions, supra note 50, at 390-94; supra Part IV, Section vi. 1990] FIRST AMENDMENT: EXPLORATIONS 2047 nel.'" (There was not then the case law to support the administrative law review that might be available in comparable circumstances today.) Also, he associated me with Malcolm Sharp, of the University of Chicago Law School, whose efforts on his behalf he remembered 45 fondly. 1 I invited Mr. Sobell to breakfast in my home on October 10, 1987, which I believe was the following morning. It was a long and lively conversation, which I rather enjoyed. It is remarkable how "American" and good-natured this convicted atomic spy is. One would expect someone who has protested his innocence for more than thirty years to be embittered, if he was innocent, or devious, if guilty, neither of which does he appear to be. Whatever Mr. Sobell had been guilty of, it had clearly been done for "ideological" reasons. Certainly, he is appalled by what is happening in contemporary espionage, as we learn from periodic exposures of Americans who are willing (even eager) to betray their country for money, with no pretense of any cause being served by them. The willingness of Americans to spy for money reflects, for Mr. Sobell as for me, a general corruption. Consider one John Walker, a Navy communications expert, who betrayed his country for money by selling military secrets to the Russians.'" He engaged in seventeen years of profitable (and even tax-free!) espionage, initiated by himself, evidently recruiting members of his family for his enterprise. 47

144. Stephen Love, a prominent Roman Catholic layman, had been the only member of the Committee on Character and Fitness to support my original application for admission to the Illinois bar in 1951. See infra Part IX, Section ii. The memorandum I prepared in 1954 was entitled, Memorandum with Respect to the Imprisonment of Morton Sobell on Alcatraz. 145. For the best discussion I know of the Rosenberg-Sobell case, see M. SHARP, WAS JUSTICE DoNrE? (1956); supra notes 51, 143. I now have the impression that I might have met Mr. Sobell once before: we may have been on a Chicago television discussion program together with two or three others, perhaps in the course of a book-promotion tour by him some years before. If so, we did not see anything more than that of each other on that occasion, so far as I now recall. 146. See, e.g., Lehmann-Haupt, Book Review, N.Y. Times, Oct. 8, 1987, at 24, col. 1; Smith, Book Review, Chicago Sun-Times Book Week, at 17; Wood, Spy Drama Compelling, Christian Sci. Monitor, Feb. 2, 1990, at 10-11; cf. Anastaplo, Clausewitz and Intelligence: Some Preliminary Observations, 16 TEACHING POLITICAL SCIENCE: POLITICS IN PERSPECTIVE 77 (1989); Safire, Spies of the Future, N.Y. Times, Mar. 16, 1990, § 5, at 15, col. 1. On Socrates' warnings about money-making, see supra text accompanying note 20. 147. Consider, also, the sales of military secrets by French and Japanese officers to the Soviet Union. See Engelberg, Jury Hears Tale of Spy Who Did It Out of Greed, N.Y. Times, July 19, 1989, at 7; see also Wines, Spy Reported in Soviet Hands was a Top Agent, U.S. says, N.Y. Times, Jan. 16, 1990, at 10, col. 5. 2048 TEXAS TECH LA W REVIEW [Vol. 21:1941

I found Mr. Sobell to be a decent man, however ingenuous he can be when he deals with political things. In fact, I suspect it was his ingenuousness that got him mixed up in the early 1940s with people who were so vulnerable to charges of subversion. It should be noticed that serious spies have always steered clear in this country of identification with the Communist Party. And, I recall, the Communist Party was very much disturbed initially by the Rosenberg- Sobell indictments, not wanting to be publicly associated with such deadly business. This contributed to the lack of availability of experienced criminal-defense counsel for these defendants, although (Mr. Sobell indicated to me) some of the regular counsel for the Communist Party did offer help behind the scenes. A change in times is reflected in the fact that such a relaxed conversation could be carried on by my wife and me with someone with Mr. Sobell's record, and carried on with no efforts at conceal- ment. The considerable change is reflected also in the fact that a respectable law journal such as the DePaul Law Review could devote so much of a recent issue as it did to a collection of documents related to my bar admission case.'4 This is to be contrasted to the suppression in 1951 of an article of mine about my bar admission case at the insistence of the dean and a leading professor of the University of Chicago Law School, an article that had been commissioned and accepted for publication by the University of Chicago Law Review. 49 Those were the days also when almost all of my classmates ran for cover when my bar admission troubles began.

V. But however improved the climate of opinion is in critical respects, a certain deterioration may be seen in the pervasive materialism of which one particularly ugly manifestation is the espionage that is carried on solely for personal gain. Still, the conduct of my character committee very much depended on their taking material considerations seriously. For one thing, the committee discouraged any dedication to principle on the part of applicants for admission to the bar. It in effect said to applicants

148. See Anastaplo, Still Wrong, supra note 111, at 551-647. 149. See id. at 602-07. 1990] FIRST AMENDMENT: EXPLORATIONS 2049 for admission to the bar, "If you insist upon standing by principles, we will deprive you of your livelihood as a lawyer."' 510 This approach does teach that principles should be sacrificed to personal interest, that the common good should be sacrificed to mere self-preservation. Young people notice such lessons and conduct themselves accordingly, either by knuckling under with a view to calculated self- interest or by mindlessly resisting all authority, legitimate as well as illegitimate. The ascendancy of a deference to self-interest may also be seen in the current respectability of a jurisprudential approach that makes much - I believe too much - of the marketplace in the development and application of legal principles.

vi. The extent of the political and moral consequences of Cold War suppression in the United States has yet to be generally appreciated. There can be no question about the enormity of the crimes of Stalin - but it remains to be seen whose efforts, Stalin's or the much milder American repressors', did more harm to the United States itself. Our sacrifices in Korea, and even more (and to far less good effect) in Vietnam, were in large part due to the subversion in the United States of free and full discussion of vital public issues, discussion which might have helped us better to see what truly threatened this country. Certainly, this country is better off when it faces up honestly to what is wrong, as well as to what is right, about it. The true subversives were those Americans who discouraged their fellow-citizens from serious political discussion, all in the name of hunting down subversives. Be that as it may, Communist Party spokesmen were driven out of American public life in the late 1940s and early 1950s - and they have yet to return in an open and direct form. And yet they do have a significant set of opinions which have still to be taken seriously in

150. See Brown & Fassett, Loyalty Tests for Admission to the Bar, 20 U. Cm. L. Rv. 480 (1953). For an instructive interview with the leader of the American Communist Party, see New climate for communism in USA, USA Today, Mar. 5, 1990, § A, at 7. See also An Advance for American Free Speech, N.Y. Times, Feb. 6, 1990, § A, at 16; Time to Bury a Red Scare Relic, Chicago Tribune, Feb. 3, 1990, § 1, at 10 (editorials supporting repeal of a provision of the McCarran-Walter Immigration Act of 1952). 2050 TEXAS TECH LAW REVIEW [Vol. 21:1941 the modern world, however discredited they may be in most places, opinions which should be put in forms that only Americans are likely to be able to present them for proper assessment by the American people."'

vii. I return now to Chuck Bloom. Perhaps I never saw him clearly - but if so, -that may be because I could never forget how we first met on an air base in California. He had recently come in, as a First Lieutenant, from his service in Britain and I from flying around over the Pacific. He was drawn to me, he often reported for decades thereafter, because he saw me sitting at the bar in the officers' club drinking a glass of milk and reading Alice in Wonderland. Even then, Lt. Bloom was open to good literature, which reflected what was best in him. We had good conversations out there, mostly about books, with little if anything at all said about politics. I believe I had decided, before we met, that I would be attending the University of Chicago upon 'eturning to civilian life. I do not know whether I had any influence on his decision to go to school there also. I recall no further contact, after our few days in Cali- fornia, until we looked up each other on the Chicago campus where Mr. Bloom drifted toward a radical political position. I am not sure how that happened. I suspect that his troubled domestic relations of that period, rooted perhaps in his upbringing, had something to do with his willingness to assert himself by running risks. (A sense of superiority could even be sought as the noble champion of obvious underdogs.) His second marriage was a steadier partnership, evidently providing him more psychic security than he had ever known before. By then, also, he was a middle-aged man, and much of the wildness of his youth had been tamed. Chuck Bloom could always be impressed by those who read good books - and good books were not limited for him by any Marxist categorization. I suspect that he would have done better with the books he respected if the almost obsessively rigorous English

151. See supra note 48; infra text accompanying note 190. Consider also a recollection by Lloyd Barenblatt: "The Communist Party at that time [in the late 1940s and the 1950s] served as a familial and emotional support system for many people, for good or bad." PETER IRONS, THE CouRAE oF THEIR CoNVICTIONS 99 (1988). 1990] FIRST AMENDMENT: EXPLORATIONS 2051

Department of his day at the University of Chicago had been more humane than it was. Even so, his respect for art meant that he recognized there were standards of the beautiful and the good to be guided by. A sensible approach to things was thereby encouraged, whatever his political ideology may have tried to teach him. Chuck Bloom's openness to art finally found expression in photography, which proved in some way a more productive, perhaps also safer, form of expression for him than either philosophy or politics had been. He earned a reputation as a photographer, so much so that he could be called upon regularly by the local press. I prize a Hyde Park Herald portrait he did of me in front of the large "St. George and the Dragon" painting which hangs over the mantel in our living room. 51 2 This, then, is my tribute to a fellow aviator, a patriot who loved his country deeply despite his and his country's failure to understand what he meant and why.'."

VIII. FREEDOM OF SPEECH AND THE CHARACTER OF PUBLIC 51 4 DISCOURSE Therefore, most gratious Soveraygne, consideringe that in your high courte of Parliament is nothing intreated but matter of weyghte and importance concerning your Realme and your owne Royall Estate, yt could not faile to lett and put to silence from the givinge of their advise and councell many of your discreete Commons, to the greate hinderance of the common affayres, excepte that everye one of your Commons were utterly dischardged of all doubtes and feare howe any thinge that it should happen them to speake, should happen of your highnes to be taken.... Yt may therefore like your most aboundante grace, our most

152. See Anastaplo, Still Wrong, supra note 111, at 643 & n. 26 (referring to Colp, Anastaplo Still has More Dragons to Kill, Hyde Park Herald, Dec. 7, 1983). 153. On the Americanization of both the Roman Catholic Church in the United States and of the American Communist Party, see ANASTAPLO, THE CoNsTrrTuToNALIsT, supra note 3, at 508-09 n. 31. See generally Anastaplo, Ideology, supra note 71. For a discussion of the beguiling proposition that freedom should not be permitted to those who, were they to gain power, would not in turn permit it to others, see ANASTAPLO, TmE CONSTrTUTIONALIST, supra note 3, at 109-11. See also supra Part I, Section vii. 154. This talk was given at the Faculty of Law, University of Edinburgh, Edinburgh, Scotland, December 12, 1988. A talk on the American Constitution. was given the following day at the Faculty of Law, University of Glasgow. 2052 TEXAS TECH LAW REVIEW [Vol. 21:1941

benigne and godly Kinge, to give all your Commons here assem- bled your most gratious lycence and pardon, freely witheout doubte of your dredfull displeasure, everye man to dischardge his conscience, and boldly in every thinge incidente amongst us, to declare his advise; and whatsoever happen any man to say, that yt maye like your majestie of your inestimable goodnes to take all in good parte, interpreting everye mans wordes, howe uncon- ningly [unlearnedly, ignorantly] soever they be couched, to pro- ceede yet of good zeala towards the profitt of your realme, and honor of your Royall personne, the prosperous estate and pres- ervacion whereof, most excellent sovereygne, is the thing which we all, your most humble loving subjects, accordinge to the most bounden dewtye of our naturall allegeance, moste highly desire and praye for.

- Sir Thomas More'"

Freedom of speech, as a term of art, has its origins for the English-speaking peoples in the British Parliament. The vulnerability of members of Parliament, centuries ago when the monarch had considerably more power than today, was the principal concern reflected in the royal reassurance sought for by parliamentarians undertaking their duties. It should not take much of an argument to demonstrate to legal scholars in this kingdom that such a right or privilege is critical if there is to be the serious and adequate discussion of the matters that a self-governing body needs to consider, whether that body be the Parliament of this country or the people of the United States. A recent official publication about the British Parliament includes these instructive observations in the section, "Parliamentary Privilege, " Each House of Parliament has certain rights and immunities designed to protect it from unnecessary obstruction in carrying out its duties. These rights apply collectively to each House and individually to each member. For the Commons, the Speaker formally claims their "ancient and undoubted rights and privileges" at the beginning of each Parliament. These include freedom

155. THE UTOPIA OF Sm THOMAS MOPE 211-13 (G. Sampson ed. 1910); see ANASTAPLO, THE CONSTITUTIONALIST, supra note 3, at 538-39. See also supra Part VI, Section iv. 19901 FIRST AMENDMENT: EXPLORATIONS 2053

of speech, freedom from arrest in civil actions, exemption from serving on juries, attending as witnesses or serving as sheriffs, and the right of access to the Crown, a collective privilege of the House. The most important privilege is that of freedom of speech. When an MP is speaking to fellow members, he or she enjoys a complete right of free speech, subject only to the rules of order administered by the Speaker. An MP cannot be prosecuted for sedition, or sued for libel or slander over anything said during proceedings in the House or published on its order paper. This means that it is possible to raise in the House questions affecting the public good which might be difficult to raise outside owing to a possible threat of the law of defamation. Such privilege is not a personal favour to the individual MP, but a necessary protection and a guarantee that he or she should be able to defend to the full the interests of the electors. Thus the privilege of MPs is to be regarded as 5 6 the privilege of every citizen.1 The United States Constitution goes even further than this in regarding freedom of speech as "the privilege of every citizen," in that it recognizes that right as due directly, not indirectly, to the citizen-body. The Constitution of 1787 did acknowledgethe parliamentary privilege for members of Congress. But its First Amendment, ratified in 1791, further acknowledged that privilege for the people at large when it said, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Of course, the people of the United States had claimed and vigorously 5 7 exercised this privilege long before the Constitution itself was drafted.

ii.

The public-discourse origins of "freedom of speech" have largely been ignored, at least in the United States, in recent decades. This is not to suggest that discussion of political questions is restrained by government at this time. It is obvious that public policies and

156. LONDON CENTRAL OFFICE OF INFORMATION, REFERENCE SERVICE, THE BRrnsH PARLIA- MENT 34 (1984). 157. See supra note 110. 2054 TEXAS TECH LAW REVIEW [Vol. 21:1941 public persons are soundly criticized every day without fear of official sanctions. But the specific origins of this right are hardly evident in the extent to which the courts, and much of public opinion (and especially the opinion of the most "enlightened" Americans), have gone in defining "freedom of speech." Thus, the United States Supreme Court has, since the Second World War, struck down, in the name of the First Amendment, many of the traditional governmental powers to regulate obscenity and commercial speech, including the "For Sale" signs that Parliament has restricted the use of in this country. This means, among other things, that doctors, lawyers, and pharmacists can advertise their services as never before in the United States. In addition, the contempt powers of courts have been nar- rowed and the powers of the mass media to invade privacy have been broadened. Sometimes the Supreme Court has gone so far as to regard various actions of protest as "symbolic speech," and as such entitled to First Amendment protection from prosecution as the criminal acts they would otherwise have been taken to be. 58 This expansion of what this First Amendment right means is reflected in how it is spoken of these days in constitutional law treatises and by judges. That which was once known as "freedom of speech, or of the press" (the Constitutional language) is now routinely referred to as "freedom of expression." Thus, there has been a shift from an emphasis on the public discourse of a self-governing people to a much greater emphasis than ever before on the self-expression of human beings (not merely of citizens). The implications of this shift are not yet generally appreciated. This shift has meant that in some respects government is capable of being more restrictive than it should be and that in other respects it is less restrictive than it should be.

ill. Inappropriate governmental inhibitions, in the name of "freedom of expression," may be seen in the remarkable toleration by the

158. See ANASTAPLO, TE CONSTInTTONAISMT, supra note 3, at 120-23. Thus, it seems to me that Congress may prohibit burning of the American flag, even though it cannot forbid the most severe criticism of that flag and what it stands for. Still, the most prudent thing for Congress to do in our circumstances is to do nothing about this matter. See Court Acts Wisely to Furl Flag Law, Chicago Tribune (editorial), Feb. 24, 1960, § 1, at 12; see also infra text accompanying note 219; Anastaplo, Bork on Bork, supra note 79, at 1165-66. .1990] FIRST AMENDMENT: EXPLORA TIONS 2055

community .of activities, including forms of expression, that would once have been obviously so vulnerable that they would rarely have been resorted to.5 9 Critical to this toleration have been the rulings of courts pursuant to the speech and press guarantees in the First Amendment and to provisions with respect to due process, search and seizure, capital punishment, and various other rights in a dozen other amendments to the American Constitution. What accounts for that expanded toleration in the United States which is keyed specifically to the First Amendment? Is it due to an enlightened broadmindedness on the part of the strong and powerful? Or is it due to the loss of communal self-confidence? This willingness to put up with much that would once have been generally regarded as offensive and simply "not to be done" does go against the grain of many people with old-fashioned tastes who have no intellectual pretensions. The more old-fashioned approach seems to have been drawn upon in an episode providentially made available to us this past week by a Welsh newspaper: A fun fair stallholder was fined 200 pounds by a South Wales court for giving away indecent mugs as prizes at his shooting gallery. The Bench also ordered the china mugs to be destroyed. [The defendant], aged 29, of West Road, Nottage, Porthcawl, pleaded guilty to displaying indecent items on his stall at Coney Beach, Porthcawl, last Easter.... [The prosecutor] said [that someone] complained to the police about the mugs after he and his wife saw them displayed as prizes at the shooting range. [The complainant] spoke to the person manning the stall and was told, "It's only a bit of fun." [Defense counsel] said [the defendant] had run the stall as a family business since he was 17 years old .... It was the first time he had used the mugs for prizes, having obtained them from the South of England. He accepted they were offensive to members of the public and apologized for this. After examining a sample of five mugs the court ordered them to be destroyed. 160 This episode, including the attitude displayed both by the defendant and by the press, is in marked contrast to what we have come

159. See Anastaplo, Legal Realism, the New Journalism, and The Brethren, 1983 DUKE L.J. 1045 (1983). On the exclusionary rule and what we allow ourselves to become accustomed to, see Anastaplo, Constitutional Comment, in GERA-LnD. KoLARiK, FREED TO KEL: THE TRUE STORY OF LARRY EYLER 367-79 (1990). 160. South Wales Echo, Dec. 7, 1988, at 9. 2056 TEXAS TECH LAW REVIEW [Vol. 21:1941 to expect in American courts. Thus, the United States Supreme Court reversed a decade or so ago the conviction of the proprietor of a drive-in movie theatre whose screen displayed, visible to passers-by on an adjoining street in a Florida city, cavorting nude bodies. The only way the city could stop such displays, we have been told, was to prohibit drive-in proprietors from having the screen visible from the street no matter what type of movie was being shown. Such total prohibition could "constitutionally" be permitted as a safety meas- 6 ure, not in order to regulate offensive displays.' ' The lack of a basis for principled distinctions lies behind the Supreme Court's approach to such matters these days. Consider another case from the same period, one in which the appellant had been convicted of violating that part of the California Penal Code which prohibited "maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person [by] offensive conduct." He had worn in a public place (it happened to be a corridor of the Los Angeles Courthouse, but the case did not turn on this particular), a jacket which used a "four-letter expletive" in expressing his disap- proval of military conscription. This was during the Vietnam War. 62 The conviction was reversed. Critical to the Court's majority opinion (the Court divided five to four) was this pronouncement: [TIhe principle contended for by the State seems inherently bound- less. How is one to distinguish this from any other offensive word? Surely the State has no right to 'cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.163 To be sure, the Court had earlier referred to the appellant's jacket slogan as a "vulgar allusion to the Selective Service System," a "distasteful mode of expression," a "crude form of protest," a "scurrilous epithet," an "execration," and an "unseemly expletive."164 But these harsh-sounding assessments are evidently meant to be regarded as no more than the personal- reactions of the Justice writing the Opinion of the-Supreme Court. For when the Court gets down to business, so to speak, it observes (here I return to a sentence already quoted, and then go on),

161. Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); see also infra note 208. 162. Cohen v. California, 403 U.S. 15 (1971). See infra Part IX, Section vii. 163. Id. at 25; see infra note 212. 164. 403 U.S. at 20-23. 1990] FIRST AMENDMENT: EXPLORATIONS 2057

Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stop- ping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual165 Whether the Constitution, and particularly the First Amendment, does what the Court said here must be questioned. But what cannot be questioned is that the sentiments expressed by this Justice are widely held among American intellectuals these days, including by eminent figures associated with the current conservative administration in Washington. Indeed, the Justice who wrote the opinion from which I have been quoting was himself generally regarded as a conservative nonactivist judge, and hardly a celebrated champion of the First Amendment. (The acknowledged champion of the First Amendment on the Supreme Court at that time joined the dissenters on this occasion.' 6 ) The insistence here that "governmental officials cannot make principled distinctions in this area" draws upon a relativistic strain in American jurisprudence that goes back at least a century. That strain found its perhaps ultimate expression, in 1951, in the opinion by a Chief Justice who sought to justify the 1949 convictions of a dozen Communist Party leaders for what was, in effect, sedition. He explained away the First Amendment freedom of speech guarantee on that occasion with this observation: Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature .... To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative.167 Thus, we can see here that the relativism implicit in the "self- expression" approach to the First Amendment can lead not only to

165. Id. at 25. 166. See infra text accompanying note 213. 167. Dennis v. United States, 341 U.S. 494, 508 (1951); see also supra note 12; infra note 193. 2058 TEXAS TECH LA W REVIEW [Vol. 21:1941 considerable toleration of the unseemly but also to subversion of the absolute protection for political discussion that the First Amendment can otherwise be seen to provide. Further subversive of the salutary absolute protection for political discussion is the inclusion within the reach of the First Amendment of various forms of expression that no one would want to consider "absolutely" protected. For example, the Supreme Court, even though it has extended considerable First Amendment protection to commercial advertising, concedes that fraudulent advertising may be acted against by government. But if a "fraud" exception is thus read into the First Amendment protection of freedom of the press when commercial advertising is assessed by a governmental agency, why might not this also be done some day when political discussion is again officially assessed? Yet do we not sense that it simply will not do to police political discussion for fraud? There does not seem to be any basis in the text of the First Amendment, however, for treating one form of protected speech differently from other forms of protected speech.

iv.

It should be useful now to return to the California jacket with its offensive slogan decrying conscription. It should not matter what the particularly offensive term used was: for purposes of our discussion, each of you should imagine a term that has long been regarded as offensive in the circles in which you move. (I mention, in passing, that it need not concern us, at least for the moment, that the First Amendment, despite its obvious primary concern with Congress, was applied in this case to an action by the government of a State. This is done by virtue of the Fourteenth Amendment. What I am concerned to examine here is how freedom of speech has generally come to be talked about in the United States.) We should notice that the California jacket case did deal with discussion of a political issue. That is, it touched upon the core concern of the First Amendment. But the problem is not with the appellant's reservations about conscription or American military policy but rather with the manner in which he voiced those reservations. The Court argued that citizens should not be limited, by considerations of taste, in how they express their opinions about political issues. They should be able to use the language that they find most effective. But is not this to cater to a poverty of imagination? May 1990] FIRST AMENDMENT: EXPLORATIONS 2059 not one's understanding, as well as one's vocabulary, be enhanced 6 8 by discipline with respect to the language one uses? No doubt, the Court was troubled by the arbitrary power that would be available to officials if they were permitted to suppress troublesome opinions by categorizing as "offensive" the language in which those opinions are clothed. No doubt, also, vigilance must be exercised to make sure that such charges as "obscenity," "defamation," "sedition," "treason," "disorderly behavior," "fraud," or "contempt of court" are not used to penalize and discourage unpopular political discussion. It is instructive here to recur to the Parliamentary prototype for freedom of speech. Privileged discussion of political questions is consistent with, if not even dependent on, rules about agendas, procedures, and relevance. Participants can usually be counted on to recognize and respect such limitations when challenged to apply them. The freedom of speech privilege in Parliament is also consistent with, if not even dependent on, an insistence upon decorum. For example, the Speaker of the House of Commons can oblige a member to withdraw or apologize for certain kinds of remarks. By and large, sensible people can be relied upon to recognize when language is inappropriate in the circumstances. True, the vulgar man may not agree - but that is merely an additional indication of his limitations. If one cannot make such distinctions, including distinctions between the truly lyrical and the truly vulgar, then it is likely that one's sensibilities and grasp of natural differences are inadequate for serious discourse.

V. The author of the Supreme Court's opinion in the California jacket case was not a man without humane sensibilities. These moved him to offer a remedy to those who consider themselves attacked by offensive expressions thrust upon them in public: [P]ersons confronted with [appellant's] jacket were in a quite different posture than, say, those subjected to the raucous emis- sions of sound trucks blaring outside their residences [which this Court has recognized that government may properly regulate].

168. See ANASTAPLO, THE ARTIST AS THINKER, supra note 12, at 322-30. Consider, also, the fatal limitations of Billy Budd. 2060 TEXAS TECH LA W REVIEW [Vol. 21:1941

Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. 69 This is a remarkable suggestion to be endorsed by the Supreme Court. It seems to me to go to the heart of the modern dedication to individuality and the modern misunderstanding of freedom of speech. What did this Justice believe the problem to be? How does "averting [one's] eyes" deal with that? Is not much of the damage done by the first, unexpected "bombardment of . . . sensibilities" by the offensive language? In effect, the question is raised here of what pollution means. (Compare the Hindu Untouchable who is obliged to warn others of his approach, lest his shadow pollute them inadvertently. 170) The averted-eyes approach means that the community is to be disciplined here, not the offender. The community is to be at the mercy of anyone who wants to get a "free whack" at others. Thus, a perverse man can have his say - and his way in determining how to say it. The victims on such occasions can feel like they have been gratuitously slapped. That the community is thus crippled, unable to do much more than to be wary, is related to what is coming to be believed by all too many Westerners about the limited authority of the community in the shaping of character. We would consider it absurd to justify the ravaging of the countryside by advising troubled nature lovers to avert their eyes from offensive incursions. But is not the beauty of the soul, or nobility of character and language, at least as much a legitimate concern of the community as the beauty of the landscape? The traditional understanding of freedom of speech under the First Amendment was consistent with a recognition of considerable power in the community to train citizens. The "freedom of expression" approach to the First Amendment, on the other hand, looks to a radically different notion about the relation of "individual" to "community." I return once again to an old-fashioned approach by recalling the 1811 response by William Wordsworth upon being requested by William Godwin to versify the French fairy tale, "La Belle at La

169. 403 U.S. at 21. 170. See ANASTAPLO, HuMAN BEING AND CITIZEN, supra note 5, at 97-101. 1990] FIRST AMENDMENT: EXPLORATIONS 2061

Bete." He declined, objecting to the bestial implications of the story: I confess there is something disquieting in the notion of a Human Being consenting to Mate with a Beast, however amiable his qualities of heart. There is a line and a half in Paradise Lost upon this subject which always shocked me, "for which cause among the beasts no Mate for thee was found." These are objects to which the attention of the mind ought not to be turned even 17 i as things in possibility. Is there not something sensible, and thus socially responsible, about such a prudish affirmation of standards?

vi. The Twentieth Century approach to these matters is rather different. We have witnessed the coarsening effects of an empowerment (or "liberation") of certain kinds of people among us. Partic- ularly harmful here has been television which is now degenerating, at least in the United States, from the wasteful to the toxic. Underlying this kind of development are the uses to which technology is likely to be put unless carefully supervised. Large numbers are catered to, with standards in public discourse and in other public conduct easily lowered. More and more we are at the mercy of entrepreneurs of one kind or another who are out to gratify or to enrich themselves and who can, in the process (and sometimes with the best of intentions) shape and even corrupt vast numbers of their fellow citizens. This tendency of technology to promote irresponsibility cannot be effectively controlled if the community is taught to believe that "governmental officials cannot make principled distinctions" with respect to "matters of taste and style.' 1 72 A healthier approach is suggested by a recently-published warning by the Archbishop of Canterbury about the ease of modern travel and the growth of tourism: I am thinking not only of such consequences as pollution, pros- titution, economic exploitation, and the wholesale disregard for indigenous lifestyles. Although tourism clearly creates jobs it may be socially undesirable and even personally demeaning for young

171. Exhibit at the Wordsworth Museum, Grasmere, England (Dec. 1988). 172. See supra text accompanying note 167. 2062 TEXAS TECH LAW REVIEW [Vol. 21:1941

to be trained only for jobs that are low paid, insecure, people 73 and which carry inevitable overtones of servility. Should it not be evident that there are many human activities that cannot simply be left to one form or another of a "market" to determine, however useful a free market may be for a people equipped to use and regulate it properly?

vii. The freedom of speech recognized by the First Amendment means that the people of the United States are depended on to rule themselves. This unprecedented authority for so large a country makes it vital that that people be properly prepared to exercise its freedom. Citizens cannot truly rule unless they know what they are doing and unless they want to do what is right. I will speak briefly about each of these requirements. A self-governing people must be able to deal fully with issues; they need to be properly informed. (This is what makes an effective Official Secrets Act difficult to maintain in the United States, as compared to Great Britain where the Parliament rather than the People can still be regarded as sovereign. 174) The people's information must extend not only to facts and opinions about the political issues of the day but also to the constitutional principles of the regime, including the principles which determine what freedom of speech is and is not and what it is for. Thus, although obscenity, offensive language or commercial speech may not be entitled to First Amendment protection, it is always open to the people to raise questions about whether restrictions on various forms of expression serve the common good. So great is the power of a self-governing people that they as citizens (not as soldiers) are entitled, perhaps in some cases obliged, to question the wisdom or justice even of a war in which the country is engaged.

viii.

Also critical to effective self-government - perhaps even more important than what the people can and should know about principles and issues - is the character of the people. No doubt, the roles

173. The Independent (London), Dec. 7, 1988, at 3 (quoting Dr. Robert Runcie). 174. See Anastaplo, Reflections, supra note 71. 1990] FIRST AMENDMENT: EXPLORATIONS 2063 here of the family and of the church can, perhaps should, be primary. But the very existence, or at least the empowerment, of families and churches, as we know and rely on them, depends on the community which legitimates them and otherwise helps establish and maintain them. Family and religious life must be continually reas- sessed by the community with moral and social purposes in view. It is prudent that a nonofficial community judgment be relied upon here for the most part.' If the proper character is to be developed and maintained in a people, "freedom of expression" cannot be the mode for protected public discourse, for that is to make much, at least in practice if not also in principle, of the gratification of individuals. The problem here may even be seen in what has been allowed to happen, all over the world, in a massive buildup of cities that reflects the deterioration that can be expected when modern technology is not subjected to 76 continuing community (that is, political) control. This is not to deny that misguided political control can make matters even worse, as may be seen when technology is in the service of tyranny.

ix. What, then, lies ahead? Communities that have lost confidence in themselves cannot do or maintain what is needed. In fact, such communities (if they properly can continue to be called communities) are not apt to recognize problems for what they are. Indicative of the prospects here is that it is highly unlikely that most communities, especially the most sophisticated and tolerant elements in them, will see things as I have described them on this occasion. Also indicative of the prospects here is that it is almost certain that one of the measures most needed in our circumstances, 77 the abolition of broadcast television, will not be resorted to. Why is television not likely to be curtailed? Indeed, I understand that here in Great Britain, where it is not yet as bad as it is in the

175. See Anastaplo, Church and State, supra note 71, at 145-63. 176. See ANASTAPLO, HUMAN BEING AND CITIZEN, supra note 5, at 87-96; see also Heidegger and the Need for Tyranny, to be published in THE ANeaacAN MORALIST, supra note 18. 177. See Anastaplo, Self-Government and the Mass Media, in THE MASS MEDIA AND MODERN DEMocRAcY 161 (H. Clor ed. 1974), to be included in THE AMERICAN MORALIST, supra note 18. See also supra note 56. 2064 TEXAS TECH LAW REVIEW [Vol. 21:1941

United States, various salutary restrictions upon it are even apt to be relaxed in the near future. Consider, for example, the report last week in a Lake District newspaper: The future of broadcasting was discussed in Carlisle last week at a meeting organized by the Cumbrian Ecumenical Executive Coun- cil. The idea was to look closely at what might happen to religious broadcasting in particular, but a broader, and pessimistic view about the future was presented by the meeting's chairman, [a] freelance broadcaster Eric Robson... He said the choice offered by the advent of satellite and cable broadcasting would be "cheap and probably nasty" programmes. There would be freedom for the better-off to escape into "the high priced ghetto" of subscription channels. Competition would probably bring standards down, and deregulation would mean an end to the checks and balances which for 40 years had brought high quality programmes from the BBC. "If you think broadcasting's bad now, you ain't seen nothing yet!" he warned. Sadly, the broadcasters on the platform with him did little to allay the fears he voiced.1 8 Perhaps one can take some comfort from the fact that there are still broadcasters, at least in your country, who can recognize certain developments as "cheap and probably nasty" and as "high-priced ghettos." This is a sounder approach than that which is paralyzed by the sophistic insistence that it is "often true that one man's vulgarity is another's lyric. ' 179 I return to my question, why is television not likely to be curtailed? The answers include these: Because of widely-held notions about the sanctity of property and entrepreneurial liberty; because of widely-held notions about individuality and free choice; and because of television's general allure and intermittent usefulness. Even more important, in accounting for the continued toleration of television (which could be widely boycotted, if not abolished), is that people simply do not see it as on net harmful. Still more important perhaps is that the leaders of opinion do not regard it as any business of communities and their governments to concern themselves with the character of people. If there are no sensible standards about the good and the bad or about the ugly and the beautiful generally available to a com-

178. Muirhead, The Lakes Leader, Dec. 7, 1988, at 32. 179. See supra text accompanying note 165; see also supra note 12; note 167 and accompanying text. 19901 FIRST AMENDMENT: EXPLORATIONS 2065

munity, then much is to be said for severely limiting governmental power to guide public opinion and to shape a people's character. But if sound opinions about the good and the beautiful are not held by a people at large, why should they be entrusted with that extensive freedom of speech which presupposes a self-confident community that is equipped to recognize and to serve the common good?

180 IX. FORMS MAY MATTER: A COMMAND PERFORMANCE Plato's and Xenophon's presentations of Socrates can be understood, can be understood, as replies to Aristophanes' presentation of Socrates. Aristophanes' presentation is not a piece of buffoon- ery; it goes to the root of the matter, not in spite but because of the fact that it is a comedy. The Clouds, read in conjunction with the other plays of Aristophanes, especially the Birds and the Thesmophoriaszusae, is one of the greatest documents of the contest between philosophy and poetry for supremacy and of the case for the supremacy of poetry. The Aristophanean comedy is based on the fundamental distinction between nature and convention. It is therefore based on philosophy. 8 - Leo Strauss1 1

It has been many years since I have volunteered to speak about my bar admission case, which began in Chicago, Illinois in 1950 and which ended, in a manner of speaking, in Washington, D.C. in 1961 .182 Although I have taught constitutional law for several decades now, I have never discussed my case in any of my courses. The case can be thought of as on the fringes of American constitutional law, so much so that a fairly comprehensive account of that law since the Second World War need not do much with my case if it refers to it at all. Yet it is perhaps significant that I am requested, indeed

180. This talk was given at Claremont-McKenna College, Claremont, California, March 10, 1988. It was arranged by Harry V. Jaffa of the Political Science Department of that college. On Professor Jaffa, see ANASTAPLO, THE ARTIST AS THINKER, supra note 12, at 476- 79 and see also infra note 211. 181. STRAUSS, TiE REBIRTH OF CLASSICAL POLITICAL THOUGHT, supra note 6, at 173; see supra text accompanying note 6. See also infra note 205. 182. In re Anastaplo, 366 U.S. 82 (1961). My most recent assessment of the matter may be seen in Anastaplo, Still Wrong, supra note 111. For another assessment, by one of my law school professors, see KALVEN, supra note 40, at 574. 2066 TEXAS TECH LA W REVIEW [Vol. 21:1941 sometimes required as on this occasion, to speak about that case again and again. There is something about the case that does intrigue people, particularly in light of what I have done and said (and with whom) since that fateful day in November 1950 when I first happened to run afoul of the Illinois Supreme Court's Committee on Character and Fitness. It may be, of course, that I am asked to speak as often as I am about this subject at least in part because of a rule I have long tried to live by, which is not to repeat public talks. This may make some curious about what I might say this time. I have the sense that to repeat myself not only would make me feel like an actor (if not even a sophist) on tour, but also would deprive me of the opportunity to probe further into the subject under consideration for what I at least can learn from it. No doubt, there is the risk, if one proceeds thus, of running out of anything interesting to say. But one can try to make up for one's deficiencies by telling not-irrelevant, however lighthearted, stories - and I do have a few to tell on this occasion. I have long been intrigued by bakery salesladies' use of waxed paper for handling the fresh, unwrapped bread one asks for. This use can be rather awkward, but it is obviously reassuring to customers who would prefer not to have their food touched by another's bare hand. I have wondered, as no doubt many of you have also, about how this ritual is to be understood. A recent experience in a Chicago bakery shop was delightfully instructive. I asked for a pound loaf of pumpernickel, which is baked by that bakery in two-pound sets, with a "crease" where the two parts can be divided. The saleslady misunderstood me and began to bag the two-pounder, holding it firmly with waxed paper in hand. I corrected her and, since she seemed to be new, suggested that she should break apart the two parts. This she was glad to do - and you can guess how she did it: she held through the waxed paper the half she was going to give to me while she firmly grasped the other half with a bare hand in order to separate it from my purchase and put it back on the shelf. There was something wonderfully ingenuous about this, so un- selfconscious was she. One could, as a customer, be reminded of what one somehow "always" knew - one is thus reminded of what happens in such places when no one is looking. After all, how do you suppose those loaves all get up on the shelves before the shop opens? What do you suppose happens when a loaf slips and falls to the floor? Indeed, one could well ask, how many bare hands do you 1990] FIRST AMENDMENT: EXPLORA TIONS 2067 suppose have touched a loaf of bread between the time it is baked and the time it is delivered to the customer? It helps, in conducting oneself and in watching others conduct themselves in matters both great and small, to appreciate what both the true and the ostensible purposes are of the forms or conventions to which we not unnaturally subject ourselves. Take, as a more serious case in point, how I approached in August 1975 a White House staff member I happened to know on behalf of a Chicago woman in a federal penitentiary. My letter opened with these observations: I have called to -- 's attention, with the hope that he would talk about it to someone in the Ford Administration, the continued imprisonment of Jane Kennedy, a nurse convicted of an offense growing out of her opposition to the Vietnam War. He reports that he has spoken to you about the matter and that you have asked that more information be supplied you with a view to an approach to someone in the Justice Department. Miss Kennedy - whom I have never seen, heard, met or had any dealings with personally - is currently serving a three-year sentence at the Federal Reformatory for Women at Alderson, West Virginia. Her offense was that of participating in the publicized destruction of files held by an Indianapolis, Indiana draft board. This destruction took place in the Fall of 1969.... Some of the others involved in the Indianapolis activity have, I understand, been placed on probation or otherwise released from imprisonment. But Miss Kennedy has evidently refused either to express repentance for what she did or to promise that she would never do that sort of thing again - and so she has been condemned to serve out her time.... Particularly troublesome for me is the fact that Miss Kennedy has already served (in the Detroit House of Corrections) a year and a half for an offense similar to the one for which she is now imprisoned. That is, a week before the Indianapolis action (which was in violation of a federal statute), she was involved in the destruction of computer tapes on napalm, defoliants and the like at the Dow Chemical Company research center in Midland, Mi- chigan (which destruction was in violation of a state statute). I realize that there is not in all this a case of double jeopardy. Even so, legal technicalities should not be permitted to obscure what is all too evident here, that she has already been imprisoned for an offense intended as a deliberate protest against a war which was, to say the least, ill-conceived. Whether Miss Kennedy's actions in the Fall of 1969 were foolish, 2068 TEXAS TECH LA W REVIEW [Vol. 21:1941

I do not presume to say: one has to take into account, among other things, the desperation which sensitive critics of the war felt in those days. What is certainly foolish, it seems to me, is the ritualistic exaction, in cold blood, of such punishment as she is now being subjected to, long after American fighting has been stopped and after people such as Lt. Calley have been shown mercy. 831 I will not read all of this 1975 letter, but two more passages are useful for our immediate purposes. One passage, drawn from the middle and end of my letter (written, I should point out, after the war was over for us) goes like this: What makes the treatment of Miss Kennedy particularly foolish is that it is in the country's interest for the Ford Administration to establish and maintain a justified reputation for sobriety and generosity, for a sense of decency. I have had occasion .. . to observe, "The continued imprisonment of the harassed, anti-war nurse, Jane Kennedy, remains a scandal. She seems, by all accounts I have seen, a decent woman." This is said, and I believe fairly said, in the context of a defense by me of Mr. Ford's pardon of Mr. Nixon.... Thus, it seems to me, both the general welfare and human compassion, to say nothing of mundane political interests and ordinary justice, would be served by releasing Miss Kennedy from custody immediately. I have recently heard that her health is deteriorating in prison - and this, too, it seems to me, counsels dispatch.184 My final passage from the August 1975 letter to my White House correspondent is this: Miss Kennedy, I should add, is about our age .... She is, I understand, a devout Roman Catholic. I believe we can both understand her protests against the war, whatever reservations we might have had about the form they took - and, indeed, understand them as deeply patriotic and humanitarian in their intention. What I do not understand is how mature men can believe that this woman belongs in prison. I should also add that I do not see any need, in order for the common good to be served, that she should be obliged to request or agree to either a pardon or a commutation of sentence. If

183. Anastaplo, Passion, Magnanimity and the Rule of Law, 50 S. CAL. L. REv. 351, 363- 64 (1977) [hereinafter Anastaplo, Passion]. 184. Id. at 364, 366. 1990] FIRST AMENDMENT: EXPLORATIONS 2069

worst comes to worst, she can simply be "evicted" from her prison - and refused re-entry! The power of the government to relinquish control over a prisoner cannot be left at the discretion of that prisoner any more than its power to assume such control in the first place. I mention this lest it be argued that Miss Kennedy will not "cooperate" in efforts to release her. No doubt, she will always believe that she did the right thing in opposing the war as she did in 1969 - and it is unseemly, as well as unproductive, to try to force her to say or do anything which would (in her view) imply otherwise." 5 My suggestion that she be "evicted" still strikes me as a nice way of putting it. But my White House staff member did not take kindly to various of my suggestions, as may be seen in his reply two months later which I quote in its entirety: I regret not having answered your letter sooner, but routine letters have a way of displacing the ones that take some thought to prepare. The points you raise in your. letter about Miss Kennedy are compassionate ones, but I am surprised that a devotee of procedural propriety would simply ignore the obvious legal difficulties in trying to resolve the case as you suggest. Miss Kennedy has been charged with and convicted of specific criminal acts. She is not in prison for opposing the Vietnam War, but for destroying government files. Her refusal to ".express repentance" creates a problem for parole boards for there is no assurance that if she is released she will not be inclined to commit similar acts again for similar reasons. An application to have her sentence reduced would probably be considered in the same light. (I rely on your letter as my sole source of factual information.) Your comparison of Miss Kennedy's case and the Calley case is not persuasive to me. My personal opinion is that Calley's sentence should not have been reduced. To reduce other sentences because his was, seems to me to compound the error. Your suggestion that the Government "evict" Miss Kennedy from jail is legal procedure I never heard of, but perhaps that is my ignorance. Miss Kennedy seems to be trying to make a political and moral point by refusing to participate in the legal process leading to probation. Since she does this of her own free will, there is not much government officials can do and still abide by their oaths to uphold the law.

185. Id. at 365. 2070 TEXAS TECH LAW REVIEW [Vol. 21:1941

You know that I know I am not saying what you might like to hear, but our views differ on the character of her acts, and what the law's view of such acts should be. What seems to me to be at stake is whether legal proceedings should be deeply politicized. To my surprise, you seem to think so and to advocate the release of a duly convicted criminal on political grounds. I think such actions - especially on the reasoning you advance - would strike a powerful blow against due process, and therefore I am against 18 6 doing them, however compassionate they may seem. My correspondent was surprised to find me "advocat[ing] the release of a duly convicted criminal on political grounds." This surprise exhibits a far more limited view of the executive prerogative than even I argue for in my commentary on the Constitution which makes so much of legislative supremacy.'8 7 It is instructive, I believe, to notice the chilling use made in this White House letter of that "procedural propriety" and "due process" which I was seen as "strik[ing] a powerful blow" against with my proposal. Are we not back in the bakery with its waxed-paper ritual? Perhaps it would be useful to add here a passage from an article I published in the Chicago Tribune two weeks before the Ford-Carter election in 1976: The second critical issue threatening the Ford Administration is the pardon of Richard Nixon. But it should not take much imagination to realize that resignation from high office in sordid circumstances is usually sufficient punishment for an ambitious man. Nor should it take much imagination to realize that the indictment and highly-publicized trial of a disgraced President would hardly have contributed to domestic tranquillity the past two years. In fact, the Nixon pardon did not go far enough. Everybody else involved in the offenses alleged as abuses of presidential power during the Nixon administration should have been pardoned as well. This should have been accompanied by a general amnesty for those who illegally opposed American participation in the Vietnam War. In short, our involvement in that war, to which both the Watergate problem and the amnesty problem can be traced, should have been brought to a merciful end two years ago. The President's seeming vindictiveness with respect to the amnesty issue tends to

186. Id. at 366-67; see supra note 27; note 117 and accompanying text; see also Anastaplo, Still Wrong, supra note I 1, at 607. 187. See, e.g., ANASTAPLO, CONSTITTION OF 1787, supra note 2, at 109-10. 19901 FIRST AMENDMENT: EXPLORATIONS 2071

tarnish his forthright decency in the decision to pardon Mr. Nixon. 8'8 Miss Kennedy, I should add, was released from prison about six months after my apparently unproductive dealings with my White House staff member. I do not believe she was given any special consideration in the disposition of her case.

ii. My own case began in November 1950, a few months after I had taken and passed the Illinois bar examination, when I appeared before the character committee of the bar for a routine examination. I happened to say the wrong things to that committee (about which I will say more later) and ended up (over the years following, during one hearing or another) being asked about various possible memberships, particularly in the Communist Party, but also in other organizations as well, such as the Ku Klux Klan, the Silver Shirts of America, and eventually even about the Democratic Party and the Republican Party. I considered questions about organizational memberships highly improper, told the committee so, and refused to answer them. My wife and I had at the time that all this began the first of our four children, a six-month-old daughter who is now a member of the Illinois bar. During the first round of my encounters with the Illinois bar, I testified before the character committee in November of 1950 (through a two-member subcommittee) and in January 1951. In the following June the character committee announced its decision (sixteen to one) that I had not established my character and fitness for the purpose of admission to the bar. 189 That letter, which reached us in Paris where I was using up the rest of my G.I. Bill studying at the Sorbonne and hugely enjoying the city, is now framed and on display in my law school office. One concern I had at that time, 1950-1951, which I did not share with the character committee, was intimately connected with the worst days of the Korean War, which was when all this began. My question then was as to what would happen first: my repudiation

188. Anastaplo, What Gerald Ford Should Be Saying, Chicago Tribune, Oct. 20, 1976, § 3, at 4; see also Anastaplo, Passion, supra note 183, at 368 n. 31 (quoting from that 1977 article on the limitations on Russian influence in Eastern Europe). 189. See supra note 144. 2072 TEXAS TECH LAW REVIEW [Vol. 21:1941 by the character committee of the Illinois bar or my recall to active duty, as a flying officer, by the United States Air Force in which I still held a reserve commission after my service during the Second World War. If I had been recalled, I would have served: I had had no problem justifying American intervention in the Korean War under United Nations auspices.190 I did have problems, though, with the kinds of questions the character committee was asking: I did not want to contribute to the dangerous, as well as unseemly, deterioration in public discourse in the United States to which such questions, and acquiescence in such questions, seemed to me at that time to be contributing. The Air Force left me alone, however, and I continued to serve in the reserve for several more years, well past the time that the Illinois bar refused to have me in 1951. Many, perhaps most, of the character committee which rejected me had been too old to serve in the military during the Second World War. I appealed to the Illinois Supreme Court from the character committee's decision, losing there seven to nothing in 1954. The following year the United States Supreme Court refused to take my case, with Justices Black and Douglas indicating they would have taken it. I revived my application in 1957 (more on that later); extensive hearings were held by the character committee in 1958; I was again rejected in 1959 by the character committee (this time eleven to six) and by the Illinois Supreme Court (this time four to three). Thereafter the United States Supreme Court took my case and decided against me in 1961 (five to four, with Justices Black and Brennan writing dissents). Through- out this decade of litigation (between my twenty-fifth and thirty-fifth years) I represented myself, prepared all my legal documents, and argued my own case before the Committee on Character and Fitness, the Illinois Supreme Court and the United States Supreme Court. It was all very interesting, indeed in many ways a wonderful experience. This aspect of my career was nicely summed up by C. Herman Pritchett (whom I had come to know when he was on the Political Science faculty at the University of Chicago). Mr. Pritchett, a past president of the American Political Science Association and at the time a member of the University of California at Santa Barbara faculty, could write this about me in reviewing my first book in 1972:

190. See supra notes 48, 66. See supra Part VII, Section vii (beginning). 1990] FIRST AMENDMENT: EXPLORA TIONS 2073

On April 24, 1961, the Supreme Court of the United States, by a vote of five to four, affirmed the action of the Illinois Supreme Court which, by a vote of four to three, had upheld the decision of the Committee on Character and Fitness of the Illinois bar which, by a vote of eleven to six, had decided that George Anastaplo was unfit for admission to the Illinois bar. This was not Anastaplo's only such experience with power structures. In 1960 he was expelled from Soviet Ruisia for protesting harassment of another American, and in 1970 from the Greece of the Colonels. As W. C. Fields might have said, any man who is kicked out of Russia, Greece and the Illinois bar can't be all bad. 91 This may well be the most quoted paragraph in Professor Pritchett's extensive writings - appropriately enough, I believe, since I agree that I surely "can't be all bad."

Ill. At the core of the difficulties I had with the Illinois bar and the Illinois Supreme Court was my defense of the right of revolution as set forth in the Declaration of Independence. It had been what I had presumed to say in response to committee questions, in 1950, about the right of revolution that led to committee inquiries into possible memberships which I refused to answer. In all subsequent hearings before the character committee, and in the two opinions by the Illinois court,' 92 much was made of my controversial right-of- revolution opinions. The right of revolution depends ultimately, at least among us, on an awareness of natural right. It is salutary for American lawyers and judges to hear affirmations of the right of revolution, as set forth in the Declaration: it reminds them, as it should us all, that there are standards above positive law by which we should ultimately take our bearings. A depreciation of natural right may be seen in what judges, lawyers and legal scholars now say (if not, in their heart of hearts, believe) about the great Anglo-American institution of the common law. They can no longer speak of the common law as a sustained effort by the bar and bench to apply enduring standards

191. Pritchett, Book Review, 60 CALrF. L. REv. 1476 (1972) (reviewing ANASTAPLO, THE CoNsTrrrTmONALIST (1971)); see supra notes 71, 96. 192. In re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), aff'd, 366 U.S. 82 (1961); In re Anastaplo, 3 I1. 2d 271, 121 N.E.2d 826 (1954), cert. denied, 348 U.S. 946 (1955). See infra note 196 and accompanying text. 2074 TEXAS TECH LAW REVIEW [Vol. 21:1941 of justice to a variety of circumstances. Rather, they speak of it as no more than an emanation from some sovereign - that is, as still another form of positive law, and no more than that. 193 In his 1961 Opinion for the Court in my case, Justice Harlan dismissed the suggestion that I had gotten into trouble with the character committee because of my defense of the Declaration of Independence.'9 However, anyone who reads the record with reasonable care and appreciates the public passions of the 1950s should be able to recognize the vital role played by the Declaration of Independence in my controversy. Still, it is salutary that Justice Harlan could come to insist that surely no one had ever been penalized for believing in the Declaration of Independence. It is one achievement of my litigation that by the time it ended those who had repeatedly ruled against me had to pretend they had "always" been other than they had been. This was quite dramatic recourse to waxed paper to convey the impression of most proper conditions. Indeed, it can be argued, no controversy in the Supreme Court since Dred Scott95 has made so much of the Declaration of Independence - and in both cases (one of them momentous, the other minor) the Court majority distorted the obvious points. Justice Black, on the other hand, appreciated what the Decla- ration of Independence meant in my case. He can even be charged with having exaggerated the importance here of the Declaration. What also appealed to Justice Black was that an individual was standing firm on principle against the demands of government. I should add that however attractive "standing firm on principle" may seem, it does ultimately depend for its true worth on what the principle is that is being invoked. I believe that Justice Black sensed this also.196

193. See supra note 110. Consider, also, PLATO, STATESmAN 2948B: "[Tihe differences of men and of actions and the fact that nothing .. . in human life is ever at rest, forbid any science whatsoever to promulgate any simple rule for everything and for all time." See PLATO, REPUBLIC 546A; see also supra notes 21, 82. 194. See 366 U.S. at 95-97. 195. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856). On Dred Scott and the Lincoln-Douglas debates, see Anastaplo, Slavery and the Constitution: Explorations, 20 TEX. TECH L. RPv. 677, 732-53 (1989). In that article, at page 679, line 33 should read, "citizens in the pre-glasnost Soviet Union ever had." At page 723, lines 7-8, "three decades" should read, "two years." The block quotation at the top of page 739 ends in line 11. 196. See Dilliard, Mr. Justice Black and In re Anastaplo," 9 Sw. U.L. REv. 953 (1979); see also supra note 182. 1990] FIRST AMENDMENT: EXPLORATIONS 2075

In any event, he was so caught up by the drama of this case that he wrote for it what is widely recognized as one of his most eloquent dissenting opinions. In fact, the concluding lines of his dissent were chosen by him to be read, as the first passage from his own writings, at his impressive funeral services in Washington Ca- thedral on September 18, 1971. The lines he selected from his Anastaplo dissent are these: [I]f we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us . . . we must return to the original language of the Bill of Rights. We must not be afraid to be free. 97

iv. I have noticed in Professor Pritchett one Southern California connection with my case. An even more significant connection was provided by the unsuccessful application of Raphael Konigsberg (of Los Angeles) for admission to the California bar. The first round of my case, you will recall, began in 1950 and ended in 1955 with the refusal of the United States Supreme Court to hear my appeal. The dissents registered on that occasion by Justices Black and Douglas served as indications to the bar that some members of the Court were interested in bar admission matters. I returned to the University of Chicago in 1955 to begin work on a Ph.D. and a new career. Then, in 1957, a decision was announced by the United States Supreme Court (six to three) to the effect that Mr. Konigsberg could not properly be denied admission to the bar for having refused to tell the California character committee whether he had ever been a member of the Communist Party. Justice Black wrote the opinion of the majority and Justice Harlan wrote a vigorous dissent in the case. 98 I do not recall now whether I knew then that the Konigsberg case had been on its way up. It was evident to me, upon reading the opinions in that case, that Mr. Konigsberg would still have a difficult time getting admitted

197. 366 U.S. at 116; see Order of Service: Hugo LaFayette Black National Cathedral, Washington, D.C. (Sept. 28, 1971), reprinted in Memorial Addresses and Other Tributes in the Congress of the United States on the Life and Contributions of Hugo LaFayette Black, H.R. Doc. No. 236, 92d Congress, 1st Sess. 64-65 (1972); see also Anastaplo, Still Wrong, supra note 111, at 575-76 n. 92. 198. Konigsberg v. State Bar, 353 U.S. 252 (1957). See also supra Part VII, Section iii. 2076 TEXAS TECH LA W REVIEW [Vol. 21:1941 to the California bar. There is sometimes quite a gap between a United States Supreme Court ruling and effective compliance by a state court. It was also evident to me that my case was even stronger than Mr. Konigsberg's had been, not least because there was not in the record of my litigation any evidence or allegation of any improper membership. Mr. Konigsberg, who is about a decade older than am I and who grow up in urban settings, had had far more opportunities than had I to get involved in leftist causes before the Second World War. (I had been seventeen when I had enlisted in Downstate Illinois as an Air Cadet in 1943.) Be that as it may, I revived my application in Illinois, with the results I have reported. My second round included twenty hours of hearings before the character committee, where we once again had extended discussions of the Declaration of Independence. Maurice F. X. Donohue, the dean of the adult education division of the Uni- versity of Chicago where I had begun teaching the year before, suggested that he should charge the committee tuition for the instruc- tion I was providing them. In 1960, the Supreme Court agreed to review my case. In the meantime, Mr. Konigsberg had been again rejected by the California Supreme Court - and so we met for the first time in Washington, in December 1960, when we showed up for oral argument. He was ably represented by Stanley Mosk, a respected California lawyer (and brother of the Justice Mosk on the California Supreme Court today). I represented myself. It did not matter who represented whom. We both lost, a few months later, five to four, with Justice Harlan writing for the majority and with Justices Black and Brennan writing dissenting opinions in each case.199 Justice Black was generous enough to speak well of my oral argument in his opinion. I have sometimes wondered whether I (and hence eventually Mr. Konigsberg also) might not have fared better in the Supreme Court if my case had gone up alone, unencumbered either by Mr. Konigs- berg's slightly spotty record or by the aftereffects of the tough

199. See Anastaplo, Mr. Justice Black, supra note 117; Anastaplo, Justice Brennan, Due Process and the Freedom of Speech: A Celebration of Speiser v. Randall, 20 J. MARSHALL L. REv. 7 (1986); Anastaplo, Justice Brennan, Natural Right, and Constitutional Interpretation, 10 CARDOZO L. REv. 201 (1988) (for discussions of these Justices). 1990] FIRST AMENDMENT: EXPLORATIONS 2077

exchange there had been four years before between Justices Black and Harlan when Mr. Konisgsberg first went up. On the other hand, without Mr. Konigsberg's earlier efforts and partial success in 1957 I probably would never have come out for a second round. Besides, some of the Justices evidently believed that I, unlike Mr. Konigsberg, would get admitted to the bar whenever I chose to give in to the demands of the character committee. During a constitutional law conference in Los Angeles in 1977, I met several California lawyers who identified themselves as longtime admirers of what I had done in Illinois. Somehow they had long lost sight of Mr. Konigsberg - and I was able to inform them that he was still trying to get admitted to the California bar. I urged them to help him. I understand that this contributed, a few years later, to his finally securing admission on his own terms, by which time he was too old and ill to do much more than enjoy the pleasure of 2 formal vindication. 0

V. Various Illinois lawyers have tried, every few years, to do for me what several California lawyers did for Mr. Konigsberg. There was, however, one crucial difference: I have repeatedly refused to revive my application, and this has proved decisive for the Illinois Supreme Court when approached at different times by a Chicago bar association, by the character committee itself (which reversed, in 1978, on its own motion, its 1951 and 1959 rejections of me), and by the Illinois Bar Association. The Illinois Supreme Court does seem willing to admit me if I should request it to do so. 2°0 It seems, that is, that waxed paper is needed. It has long seemed to me that it is best to leave things as they have been since the United States Supreme Court acted in 1961, at which time I informed the Illinois Supreme Court that I was retiring from the practice of law. 20 2 I also told the Illinois court at that time

200. See Anastaplo, Mr. Justice Black, supra note 117, at 1007 n. 44. For a tribute to Mr. Konigsberg's dedicated lawyer over the years, see Collins, Memorials of Ed Mosk, 10 CAIrF. LAW. 141 (1990). See also Anastaplo, Still Wrong, supra note 111, at 553 n. 14. 201. See, e.g., Anastaplo, Still Wrong, supra note 111, at 639-40. 202. See ANASTAPLO, TmE CONSTT=ONALIST, supra note 3, at 406-07; Anastaplo, Still Wrong, supra note 111, at 590; see also ANASTAPLO, THE ARTIST AS THINKER, supra note 111, at 440 n. 202. 2078 TEXAS TECH LA W REVIEW [Vol. 21:1941 that I would be available for any proper service they may need me for. I do believe it was far better for me to turn completely to an academic career in 1961, undistracted by repeated if not constant efforts to secure admission to the bar. Perhaps my refusal personally to revive my application is itself another imitation of reliance upon the apparent efficacy of waxed paper. Perhaps, also, the same should be said even of my original resistance to the character committee almost forty years ago. It can sometimes be hard to know what one is truly doing. This calls for another story. A few summers ago, I taught in the Loyola law school program in Rome. It was a most engaging experience. One salutary feature of our visit there was to remind us of how many things we take for granted in everyday life. Nothing is simple for the foreigner in Rome - and this can help one look beyond conventions to the very nature of things. In addition, one's natural limitations can be emphatically brought home to one. Thus, even the mailing of a package in the post office can become an adventure, with the outcome always uncertain. I was reminded still again, on my flight out here today, of the things we do take for granted without suspecting it. The exit chutes were pointed out to the passengers as we prepared to take off - and then, after a long pause, the flight attendant thought to add something which of course had been taken for granted but which it suddenly occurred to her that some may need to hear: the exit chutes, we were advised, "can be used only on the ground." In such matters, substance does have to take precedence over form: there are exits that are not the kind of exits some may impulsively believe them to be. But now to my Roman story. Some of you will recall the mammoth buses that roar from one stop to another through the streets of that city, sometimes a mile or more at a time between stops. The passenger enters from the back and leaves from the middle - and the bus lingers nowhere. Two little old, quite old, ladies crawl on at one stop; the bus is crowded; my wife and I are seated near the back and we offer them our seats; they protest, addressing us in a voluble Italian which we cannot understand but which we graciously accept. It is obvious that they would not think of depriving us of our seats - but we firmly set them down. When we unhand them, they quickly uncoil like compressed springs that have been released - they jump up, frantically stumbling forward, muttering all the while. Soon there is pandemonium in the bus - and only 1990] FIRST AMENDMENT: EXPLORATIONS 2079

then do my wife and I realize that these ladies had figured, upon mounting the bus, that it would take all their strength to make their way to the exit (in the middle of the bus) in time for the next stop, where they needed to get off. They did get off as planned, but only because the uproar in the bus about what the busybody Americans had done moved even the usually relentless bus driver to pause long enough for the ambushed ladies to escape. Even though it was not our stop, I felt like leaving with them, so embarrassing had our aggressive etiquette been - but I was afraid that our little old ladies would be terrified if they saw us still stalking them. One can be reminded by such an experience that it can sometimes be difficult to know what is truly helpful. I do not mean to suggest - and here I return to the efforts that have been made from time to time to get me admitted to the Illinois bar - I do not mean to suggest that my would-be benefactors have ever acted improperly. I do believe, however, that their interests have been different from mine. They may even have been right to do what they did. In any event, I continue in the opinion, which I have expressed on numerous occasions, "that my exclusion from the bar should be left alone, serving thereby as a salutary reminder of what can go wrong when the bar, law schools and judiciary do not conduct 20 3 themselves as they should."

vi. Now I should like, as I prepare to close, to indicate briefly three lessons to be drawn from what I have described. Lesson Number One. My kind of experience can bring home the limitations of "the practical life." Certainly, making money has seemed far less important to me than it has to most of my classmates,

203. See, e.g., Anastaplo, Still Wrong, supra note 111, at 643. Each time I took my appeal to the United States Supreme Court I included an application for direct admission to the bar of that Court. This was partly designed to get around any legitimate states' rights reservations about the case I was making. See ANASTAPLO, TIHE CONSnTUTIONALIST, supra note 3, at 408- 16. On May 5, 1990 I delivered the Commencement Address at Rosary College, River Forest, Illinois, where I once served on the faculty. One of the recipients of an honorary degree on that occasion was a distinguished Chicago lawyer who had chaired one of the character committees that recommended against my admission to the Illinois bar. The title of my commencement address was taken from a Methodist hymn, "And Are We Yet Alive, And See Each Other's Face?" 2080 TEXAS TECH LAW REVIEW [Vol. 21:1941 some of whom must now be millionaires several times over. What has seemed more important to me has been care in spending the money one does happen to make. Thus, what one writes should not depend on the money offered for the occasion. One's audience should not be able to tell, by reading or hearing what one has prepared, how much (if any) monetary compensation was promised for the occasion. Or as Periander put it more than two thousand years ago, "Never do anything for money; leave gain to trades pursued for 9 gain.' )M I continue to be impressed by how much people who make, or who can make, lots of money get trapped by their "necessities." Thus, at dinner last night (in a very fancy Chicago restaurant, paid for of course by some institution), I heard people drawn from the world of judges and law professors agree that it is terribly difficult for federal judges to manage on $90,000 a year, especially if they are young enough to have children going to college. I was the only one there to register a dissent. That kind of income puts one in the upper five percent of this country - and people who cannot manage easily in such circumstances, which are guaranteed for the rest of one's life, have become most unfortunate in either their judgment or their tastes. Our lesson about the limitations of the practical life continues: My kind of experience, especially when one can choose to "give up" and prosper, does oblige one to consider seriously what kind of life is truly important. One can be taught as well that one simply cannot rely upon what courts say, however much one should respect and conform to their decisions in particular circumstances. Rather, such decisions must be thought about - and some are better at such thinking than others. In any event, my career has permitted me safely to be either "conservative" or "liberal," as each issue calls for on the merits. Liberals know that I do have, because of my bar admission case, the proper credentials. And conservatives know that I sat through as many courses with Leo Strauss as anyone ever did. That is, one consequence of my McCarthy Period reputation was so to limit for many years my academic career that I could stay right on in Chicago

204. D. LAERTIUS, LivEs OF EMINENT PIEOSOPHIERS, I, 97. 1990] FIRST AMENDMENT: EXPLORA TIONS 2081

and study for more than a decade with the greatest student of political philosophy in this century, a man who has been virtually canonized by many conservatives. 2° Such are the peculiarities of the practical life. This has been Lesson Number One.

Vii. Lesson Number Two. My conservative positions extend to criticisms of Supreme Court decisions in various fields. The abortion cases, for example, are sorry exercises of consti- 2 tutional adjudication. 06 The same may be said of any use of supposed constitutional law to advance what may be proper political purposes. The Religion Clauses determinations by the courts have had little to do with what the First Amendment says. When the Supreme Court comes out right in any particular "Church and State" case it is 2 usually by chance. 07 The obscenity cases, too, are a mess. Whatever may be sensible to do about obscenity in this or that situation, the issue has little to 20 do with the Speech and Press Clauses of the First Amendment. 1 My one claim to fame here, I presume to add, is that I believe I was the only one to predict in print that Chief Justice Rehnquist would come to be recognized as much closer to Justice Black on 2 9 First Amendment issues than was generally believed. 0 My 1986 prediction has been dramatically borne out, at least in appearance, in the recent Supreme Court decision in the case of Hustler Magazine 210 v. Falwell. I should at once suggest that the position taken by the Court in the Falwell case does not necessarily expose any of the Justices as

205. On Leo Strauss, see ANASTAPLO, THE ARTIST AS TIKER, supra note 12, at 249-72. See also Anastaplo, Shadia Drury on 'Leo Strauss', 1 Nexus 9 (1990). 206. See, e.g., Anastaplo, Still Wrong, supra note 111, at 627; see also Anastaplo, Medicine and the Law to be published in TH AmRicAN MORALIST, supra note 18. 207. See Anastaplo, Religion Clauses, supra note 119; Anastaplo, Church and State, supra note 71. 208. See, e.g., ANASTAPLO, HumAN BEING AND CITIZEN, supra note 5, at 117-38; Anastaplo, How to Read, supra note 5, at 43-55. 209. See Anastaplo, William H. Rehnquist and the First Amendment, INTERCOLLEGIATE REv., Spring 1987, at 11. 210. 485 U.S. 46 (1988). 2082 TEXAS TECH LAW REVIEW [Vol. 21:1941

"relativists. ' ' 211 Rather they seem to be dubious about any workable attempts to draw lines, partly because of the irresponsibility and bad consequences seen in earlier attempts to draw lines in First Amend- ment cases, such as in the 1950s and 1960s. 21 2 Still, it should be said that Falwell may not really be a First Amendment case. There is no serious doubt in this country but that public figures can be rigorously criticized. But there should be far more doubt than there is about the constitutional protection available for obscenity. One can study with profit the dissenting position endorsed by Justice Black in Cohen v. California,23 where freedom of speech was held by Justice Harlan (mistakenly held, 'I believe) to protect a young man in wearing in public a jacket on which an indecent expression was used to convey his sentiments about the draft. The Black position there, as well as in Tinker v. Des Moines School District,2 4 provides a sound point of departure in assessing the Falwell case. Fundamental to any conservative critique of the Supreme Court should be a return to traditional natural right teachings. I have suggested how one may proceed here in what I have said both about the Declaration of Independence's right of revolution and about the proper basis of the Common Law. 215

Viii. Lesson Number Three. My liberal positions may be seen in various criticisms of government in recent decades. My bar admission stand depended in large-part on my considered opinion that the loyalty and security obsession in the United States in the 1940s and 1950s was bad for the country.2 6 This seemed to

211. Compare Jaffa, What Were the 'Original Intentions' of The Framers of the Consti- tution of the United States? 10 U. PUGET SoUND L. REv. 351 (1987) with Stone, Professor Harry V. Jaffa Divides the House, 10 U. PUGET SouND L. REv. 471 (1987) and Anastaplo, Seven Questionsfor Professor Jaffa, 10 U. PUGET SoUND L. Rlv. 507 (1987). See also, Jaffa, Seven Answers for Professor Anastaplo, 13 U. PUGET SoUND L. REv. 337 (1990). 212. The difficulty of knowing where lines are likely to be drawn has long been known. See, e.g., supra text accompanying note 155. Cf. supra text accompanying note 163. 213. 403 U.S. 15 (1971). See supra text accompanying notes 162-66, 168-71. 214. 393 U.S. 503 (1969). 215. See, e.g., ANASTAPLO, TIE CO NSTTrIrnN oF 1787, supra note 82, at 124-39; Anastaplo, Declaration, supra note 82. Various of the issues I have been discussing in this section are also discussed in Anastaplo, Bork on Bork, supra note 79. 216. See, e.g., Anastaplo, Due Process, supra note 43.. 1990] FIRST AMENDMENT: EXPLORATIONS 2083

me far more dangerous than what was being protected against. I have argued that it contributed in no small measure to our unfortunate intervention in Vietnam, something that a more clearheaded community either would have stayed away from completely or would have conducted much differently. We should take more seriously than we usually do the ancient notion that all actions aim at some good. American Communist Party members, from what little I could learn about them in the late 1940s and the 1950s, were by and large patriots, just as were the character committee members who were so deadset against me. Both "conspiracies" were wrongheaded as well. Even so, we needed-to hear what they all had to say about American conditions as well as about foreign affairs. Similar caution is needed today in the public treatment of homosexuals and of feminist movements. There are implicit here, properly enough, vital questions to be considered about the status of nature. But we should take care, for the good of us all, not to 217 abuse dedicated people who are trying to do their best. One salutary effect of the Iran/Contra mess is that it reminds us that patriotism is not as simple as some had imagined it to be. What is one to make of an administration that could deal as it did with, and even arm, those partly responsible for killing our Marines in Beirut? Even so, I must admit, I see something of myself in Colonel North - and this can be most sobering as I contemplate what I have done and why for several decades now.

ix. I do not mean to suggest, by anything I have said on this occasion, that we should not respect government and laws. Forms are of course important, especially in the law. For one thing, forms make restraint more likely, and that is usually to the good, especially in times when there is a lot of mindless change. In these matters, forms may be to substance as conventions are to nature. It is useful, indeed natural, for human beings to develop conventions appropriate for their circumstances. I have one more story here, again about that instructive waxed paper. While waiting for a plane last week at the Minneapolis-St.

217. See, e.g., ANASTAPLO, TIE ARTIST As TmFNKzR, supra note 12, at 477. 2084 TEXAS TECH LAW REVIEW [Vol. 21:1941

Paul Airport, I watched a little drama at a breakfast counter. A man selected his pastry, pointing to a piece behind the glass. The saleslady, instead of employing the tongs available, used her bare fingers to put the designated pastry on a plate. I could see the man wince before he announced that he had changed his mind. I do not believe she realized why. Did even he realize what was going on? In any event, he selected something else, already wrapped in waxed paper. He did not get thereby what he really wanted - either in the kind of food or in the way it was handled, since no doubt the wrapped item had been handled barehandedly hours before when it was originally wrapped. But he did get for himself a certain peace of mind, however dubious its foundations. We must remember that communities and political life, including the efficacy of laws, depend on opinion, often ill-conceived or poorly understood opinion. This means, among other things, that people's sensibilities, often vague and inarticulate, do have to be taken into account. A good supply of waxed paper, or useful forms, should always be available to the serious politician. But such forms depend, for truly proper use, on prudence. Consider what one of the great statesman of this century had to say about the forms, or received opinions, that the British had relied upon in preparing the defenses of Singapore before the Second World War. Singapore fell easily to the Japanese assault in 1942. The reason is given in this Churchillian confession: I do not write this in any way to excuse myself. I ought to have known. My advisers ought,,to have known and I ought to have been told, and I ought to have asked. The reason I had not asked about this matter, amid the thousands of questions I put, was that the possibility of Singapore having no landward defenses no more entered into my mind than that of a battleship being launched without a bottom. 218 A certain detachment may be promoted by the kind of career I have had. Does not one have to be able to stand back in order to see what is really happening - in order, that is, to determine what is truly worthy of intelligent dedication and even sacrifice?

218. W. CHURCHEL, 4 The Second World War, Hinge of Fate 49 (1950). On how far freedom of speech may go even in wartime, see id. at 391-400. See also supra note 23 and accompanying text; supra note 119. 1990] FIRST AMENDMENT: EXPLORATIONS 2085

CONCLUSION The quarter-century sampling of nine exercises in freedom of speech collected in this article opened with reminders of what Socrates did consider himself able to learn and to know. It is prudent to remind ourselves again, at the end of these explorations, of the limits of that rationality for which Socrates stands, limits that can significantly affect what we should usually expect of one another as a community. The limits of rational discourse are suggested by an exchange on the meaning of words, presented here in its entirety, which took place very early one August morning in 1987 on an urban university campus. The exchange, which suggests the disjunction there can be between passion and reason, opens with a middle-aged woman shying away as an older man approaches her with a sedate, middle-sized dog (the dog is not on a leash): Woman: Please keep him away from me. I'm afraid. Man: Why should you be afraid of her? Woman: What do you mean, "Why"? Man: Don't worry. She's not going to bother you. Woman: How can you know what bothers me? Man (to the dog): Come on, old girl. Let's go. The man and his dog leave. The kind of determined, indeed desperate and hence ingenious, avoidance of rationality exhibited in this exchange should always be kept in mind as a possibility to be reckoned with along with the benefits, both public and private, that we are accustomed to expect from genuine discussion. Accommodations do have to be made, and not only because of compassion, to those who are moved more by symbols, images and mangled memories than by ideas and sound argument. Liberals, especially when challenged to be emancipated, have to be cautioned not to separate themselves too much from those who make a great deal of symbols such as The Flag. 219 Conservatives, on the other hand, must take care, especially where self-interest is likely to be served thereby, lest they so substitute image for substance that they neglect the very substance on which a treasured image may depend.

219. See Anastaplo, Bork on Bork, supra note 79, at 1165-66; see also supra note 158. 2086 TEXAS TECH LA W REVIEW [Vol. 21:1941

It is one mark of the truly rational human being to be aware of the limits of rationality in many of those fellow citizens with whom he must collaborate for the sake of that common good which ultimately relies, at least among a self-governing people, upon understanding. Or, as Montesquieu put it in his account of "education" under a despotic government, "Extreme obedience assumes ignorance in the one who obeys; it assumes ignorance even in the one who commands; he does not have to deliberate, to doubt or to reason; he has only to want." Here, then, we have still another argument for a proper freedom of speech: it can help us determine what we truly want. 22'

220. MONTESQUmU, supra note 1, at bk. 4, ch. 3, p. 34. 221. It is true that in democracies the people seem to do what they want, but political liberty in no way consists in doing what one wants. In a state, that is, in a society where there are laws, liberty can consist only in having the power to do what one should want to do and in no way being constrained to do what one should not want to do. Id. at bk. 11, ch. 3, p. 155. See also PLATO, LAWS 688A; PLATO, REPUBLIC 557B. Cf. PLATO, REPUBLIC 561D; THucYDIDEs, supra note 64, at II, 37-41, VII, 29-30. Consider, as well, ARISTOTLE, NIComACHE"N Eiucs 1099al6-20: "The man who does not rejoice in noble actions is not even good; since no one would call a man just who did not enjoy acting justly, nor any man liberal who did not enjoy liberal actions; and similarly in all other cases." See PLATO, REPUBLIC 619C-E.