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 mat- ters. 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-govern- ment. 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.