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Show Qm 1 ...... ""v H . i r i i i Credit: UPI-COMPIX - COMMUNIST DEMONSTRATION IN UNION SQUARE, NEW YORK CITY, 1932. Freedom of speech and assembly, guaranteed by the First Amendment, have not always been observed by those authority. flAQFluSflfcS ISSUES FORUM Advocacy Free Speech, free Assembly Editor's Note: This is the tenth in a series of 18 articles written for the nation's Bicentennial and exploring themes of the American issues Forum. Professor Pro-fessor Jackson, in his final article, discusses the impact of technology on the landscape and the place of the IndUdual in an environment oriented toward collective social goals. Courses by Newspaper was developed by the University of California Extension, San Diego, Di-ego, and funded by a grant from the National Endowment for the Humanities. Copyright by the Regents of the University of California. By John B. Jackson On a summer day in 13, thousands of Americans from every part of the nation gathered on the long Mall leading up to the Lincoln Memorial. They sang "Glory. Glory, Hallelujah" and demanded de-manded fulfillment of the promise for which Lincoln lived and died. In unison they chanted, "Wc sahll overcome..." over-come..." But it was to the Congress of the United States at the other end of the Mall, not to the symbol of Lincoln, that this living petition was addressed. The demonstrators were exercising ex-ercising two of the fundamental fundament-al rights guaranteed by the First Amendment to the Constitution--thc right to speak freely and the right to assemble peaceable and petition peti-tion for a redress of grievances. griev-ances. Their object was the passage of a comprehensive civil rights bill designed to assure first-class citizenship to black men and women. Early in the following year. Congress Con-gress transformed the bill into the law of the land. The rights of free speech and assembly are not always exercised so decorously, nor are they always recognized as rights by the police and others in authority. On May Day of 19"1 another great throng of Americans-most of them students stu-dents and other young persons-assembled in the Capital to protest against continuance of war in Veitnam. Thirteen thousand of them were arrested arres-ted and imprisoned - indiscriminately, indis-criminately, illegally, and often of-ten brutally -- in the largest mass arrest in American history. On September 4, 1 974. however, a United States District Court declared all of the arrests unconstitutional and ordered that all arrest records stemming from this May day demonstration should be destroyed. The freedoms of speech and assembly assured by the First Amendment (together with freedom of the press, to be discussed in the next article) are the considerations essential essen-tial to the theory of self-government embodied in the United States Constitution. As James Madison put it. "The people, not the government, posses the absolute sovereignty." sovereign-ty." The Fssenllnl Difference The First Amendment, according ac-cording to Madison, who is generally credited with having drafted it, constituted the "essential difference between the British Government and the American Constitution." In Fngland. after the civil w ars of the 1610's. absolute sovereignly sov-ereignly was transferred from the monarch to Parliament, not to the people. And. in theory at least, the will of Parliament was supreme. No fundamental written charter enumerated and limited the powers of Parliament as the American Bill of Rights limited the powers of the United Stales Congress. In authoritarian countries where ultimate power resides in a parly, an oligarchy or a dictator, freedom of expression express-ion hardly exists at all. Rulers are rarely hospitable to criticism criti-cism or challenge. Lacking these correctives, they may, through error of judgement, plunge a nation into catastro-phe--as Adolf Hitler, in hardly more than a decade, plunged his thousand-year Reich. Id a democracy.' ' however,-; -where popular sovereignty prevails, freedom of expression is the dynamo of the political process. pro-cess. The men w ho wrote the First Amendment believed that it w as less risky to permit the expression of ideas-even of ideas considered dangerous and disloyal-than to enforce silence. They believed that national unity grew out of resolved conflict, not conformity. conform-ity. In the long run, they believed, the most efficient government was the one constantly obliged to justify its actions and to meet the challenge of competing proposals. pro-posals. Freedom of assembly or associat ion--freedom to join hands with like-minded fellow-citizens fellow-citizens for the advancement of common purposcs--is an inseparable consort of free expression. Men arc best able to make themselves heard in a large community if they speak in unison. Alexis de Tocqueville, that astute French critic of the American system in its early years, remarked: "The most natural privilege of man. next to the right of acting for himself, is that of combining his exertions with those of his fellow-creatures, of acting in common with them." And he offered another canny observation obser-vation about the usefulness of this freedom: "In countries where associations arc free, secret societies arc unknown. In America, there are numerous numer-ous factions, but no conspiracies." conspira-cies." The eminent jurist. Judge Learned Hand, summed up the idea very simply: "The First Amendment presupposes that right conclusions arc more likely to be gathered out of a multitude of tongues than through any kind of authoria-tivc authoria-tivc selection. To many this is, and always will be. folly; but we have staked upon it our all." The wisdom of the choice mav be measured by the frequency w ith w hich we have seen dissenting opinions eventually even-tually prevail and minority views become the opinion of the majority. American intervention inter-vention in Vietnam, for example. exam-ple. oyfSj iaiU-car!v siages bv no more than a vociferous minor fraction of the country, is now overwhelmingly looked upon as a monumental national nation-al blunder. Time and advancing advanc-ing knowledge and changes in the conditions of life produce unforsceable alterations in fashion, in morals, in social values, even in political convictions; yesterday's here-sv here-sv mav well become tomorrows' tomor-rows' s orthodoxy. Limits of Free Speech The theory of free speech and assembly has not alwavs been honored in practice in the United States. It is sobering to recall that the First Amendment Amend-ment had hardly been ratified before the Alien and Sedition Acts of 17,8 were adopted bv a Congress fearful that the radical ideas of the French Revolution would subvert a young Republic conceived and brought to birth in revolution. The prevailing test for the limits of free speech is what has come to be know n as "the clear and present danger" standard formulated by Supreme Su-preme Court Justice Oliver Wendell Holmes. Jr. in 119 (Schcnck v. United States). "The question in every case." he wrote, "is whether the words arc used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive substant-ive evils that Congress has a right to prevent. It is a question of proximity and degree." Justice Holmes argued eloquently elo-quently in subsequent dissenting dissent-ing opinions for a liberal and fcderant application of this standard to protect "the expression of opinions that wc loathe ami, believe to be fraught with death, unless they so imminently threaten immediate interfcrncc w ith the lawful and the pressing purposes of the law that nn immediate check is required to save the county." And his great associate. Justice I ouis D. Brandeis, reminded Ameri cans in memorable words that the authors of the Constitution regarded free speech not as a mere luxury to be enjoyed only in untroubled times but as a source of strength urgently needed in times of great national strain. But in the years following the second world war these picas were pow erless against a widespread fear that subver' sive ideas from overseas-thij time from the Russian Revolu-i; tion-would sap the loyalty of ' Americans to their own institu-'' ' tions and their own country So, agian. Congress adopt j' measures seriously restrict free speech and assembly'-'3 Congressional investigitijf- committees staged what mounted to virtual trials is'''. persons for expressing "stiy'Z versive" opinions or associat ing with those suspected o-: harboring them. They punish ed people by publicity foj B offenses not punishable bij law. " g The most blatant, if not flu ' worst, of these inquisitor bodies was the Senate sub P, committee headed by Senate' 5 Joseph McCarthy, who con'y ducted it as a kind of private roving kangaroo court. Hr brought a new word, "McCari thyism," into the language f making it a synonym fo overbearing political persecn 5 tion, until, at last, he wi censured by the Senate in 19 for affronting its dignity. Am in more recent days, as w have lately learned, th'' government carried on pervasive and intimidatia surveillance of anyone sus pected of political non-cot formity. Freedom of speech an, assembly have been buffete from the left as well as frot the right University students who might be presumed t know better, have undermine civil liberty by shouting dow the expression of any idea with w hich they disagree. Th real boundaries of free speec have been left, therfore, i limbo; and no one can defin them today with any certaint; Does America truly wai free trade in ideas? D Americans possess sufficie tolerance to grant a hearing I ideas "they loath and belie to be fraught with death"? E the most unpopular idei deserve a hearing? Upon answer to these questior depends the shape of nine freedom in America. J |