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Past-Perfect                                                                                    June 1998, vol.1, no.3

Review | Commentary | Talkback || Archive || Home
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Meiklejohn's Free Speech at Fifty

This year marks the fiftieth anniversary of the publication of Alexander Meiklejohn's Free Speech and its Relation to Self-Government (Harper, 1948; pp. 107).  It is hard to imagine any book that has had more of a lasting impact on the development of modern First Amendment thought.  At one time or another, it has been claimed by liberals, libertarians, progressives, and conservatives.  Among others, it had a profound impact on the development of the free speech jurisprudence of Justices Hugo Black and William Brennan, Jr.  The late Professor Harry Kalven, Jr. has noted how some of the key components of the Supreme Court's opinion in New York Times Co. v. Sullivan (1964) "almost literally incorporated Alexander Meiklejohn's thesis."   Numerous jurists, scholars, and journalists continue to draw upon the work of this great philosopher-educator (a non-lawyer).  For example, Professor Cass Sunstein has referred to Dr. Meiklejohn as "the most influential twentieth-century philosopher of free speech."

In 1960 Dr. Meiklejohn expanded his work, which was retitled Political Freedom: The Constitutional Powers of the People (Harper; pp. 164).  This was followed by his much-noticed article "The First Amendment is Absolute," 1961 Supreme Court Review 245.

The writings of Alexander Meiklejohn--from his 1928 New Republic article on the execution of Sacco and Vanzetti to his thoughts recorded in the Bill of Rights Journal (1968)--are listed in Alexander Meiklejohn: Teacher of Freedom, edited by Cynthia Stokes Brown (Meiklejohn Civil Liberties Institute, 1981).

In order to provide the reader some sense of how Meiklejohn's work was initially received, we offer the following review by Max Lerner, originally published in the New Republic.  Dr. Lerner (1902-1992) was a noted scholar, educator, and syndicated columnist.  He authored many books, the most influential being his enduring study America as a Civilization (1957; updated 1987).  His views on law are set out in Nine Scorpions in a Bottle: Great Judges and Cases of the Supreme Court (1994) and in The Mind and Faith of Justice Holmes (1943; updated 1989).

John P. Frank, a student and friend of Alexander Meiklejohn and a noted constitutional lawyer, provides a contemporary commentary on Lerner's review and Meiklejohn's work.

Ronald K.L. Collins & David M. Skover, Editors, Books-on-Law

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Review

Man and Social Man
by Max Lerner

I first encountered Alexander Meiklejohn a quarter-century ago when, as president of Amherst, he gave a Phi Beta Kappa talk to my Yale class of 1923.  Since then I have found, in his half-dozen books and his tart conversation, a quality of mind which I can best express by the nickname now given in Israel to the doughty Palestinian-born fighters: "sabra," which means "prickly pear."

Don’t be deceived by the quiet and gentle manner of Meiklejohn’s new book, Free Speech and Its Relation to Self-Government (Harper, $2).  Before you are through you will find your thinking bruised by it at some point, and from time to time you may even fling it down in exasperated dissent.

Meiklejohn, now in his seventies, still has the exacting and irreverent mind of a great teacher.  The man who caused a turmoil at Amherst in the twenties; whose Wisconsin Experimental College produced more than a flurry in the thirties; who later ran an Adult Education School in California, where he taught workers by the Socratic method, using a few great Supreme Court cases as his raw material; who has carried on a sharp feud with John Dewey’s pragmatic-progressive concept of education; who had dared come out for the full assumption of educational responsibility by the state, Plato-wise, at a time when the grande peur of our era is the fear of statism; such a man, I suggest, is unlikely to worship the phantoms of our generation, or to wear any man’s intellectual blinkers--unless perchance they be his own.

Most of us have been caught in the grimy battle of epithets engendered by the Thomas-committee hearings, the Budenz-Bentley-Chambers axis, the Alger Hiss mystery, the contempt convictions of the Hollywood Ten, the Spanish Refugee Committee cases, the arrest of the Communist National Committee.  We forget that what gives them intellectual substance is the enduring if bloodless battle of the categories: the issues of legal and social theory involved in the meaning, the limits and the justification of the free-speech guarantee of the First Amendment.

The basic things about the theory of free speech and free thought have largely been uttered: by Socrates in his living and dying, by Milton in his Areopagitica, by Mill in Liberty; and, among our own countrymen, by Jefferson in his letters and documents, by Justice Holmes and Brandeis in their great dissenting opinions, by Professor Chafee in his already classic Free Speech in the U.S.  But Meiklejohn’s brief book nevertheless manages to give a new edge to some of the old issues.  He writes not as a liberal attacking the Tory witch-hunters or making a plea for tolerance, but as an unrelenting radical attacking the liberal dogmas as ineffective.

Meiklejohn’s position is that free speech in a democracy is not an absolute flowing from the boundless source of some presumed "natural right."  It is a practical necessity of "self-government by universal suffrage," for if the citizens are not permitted to argue out the issues of government, how can they be what they must be in a democracy--the rulers as well as the ruled?  Meiklejohn upbraids the liberals for construing the guarantees of free speech at once too narrowly and too broadly.  He attacks the Holmesian formula of "clear and present danger" on the ground that it misses the whole point of the First Amendment, which is that the people must always, even in dangerous times, have access to criticism of their basic purposes and methods.  But he goes on to delimit the area in which this unlimited right of access and discussion applies, distinguishing between the public and private interests involved in free speech.

In short, what Meiklejohn is aiming at is the demolition of the individualist theory of free speech, and its replacement by an organic or collectivist theory.  This is so ambitious a venture that even a book which is at least half a failure is nevertheless an exciting one.

The half that almost comes off is the attack on the "clear and present danger" doctrine and its basis in American individualism.  Holmes first stated the doctrine in the Shenck case, speaking for the Court majority: "whether the words . . . are 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 evils that Congress has a right to prevent."  In his Abrams dissent, Holmes argued that "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law than an immediate check is required to save the country."  And in seeking a philosophic base for allowing these ideas to be expressed, Holmes finds it in the doctrine of "free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."

Meiklejohn is outraged at this.  He stresses Holmes’s "competitive individualism," interprets him as caring only for the "trading of ideas" between selfish individuals; for "the private freedom of this or that individual who is seeking to understand," and not at all for the common compact "that whatever truth may become available shall be placed at the disposal of all the citizens."   This is a sharp insight into Holmes, but only a partial one.  Obviously Holmes was an individualist--a Darwinian, even a Malthusian, who believed that "all of society is founded upon the death of men."  But he was also Periclean in his sense of the almost sacred community.  Meiklejohn is misled by Holmes’s phrase "competition of the market" into thinking that Holmes was concerned only with the individual trader in ideas.  He forgets that Holmes, a conservative in his economics, believed that the clash of doctrines is also the best way to make truth (like other goods) available to all the citizens, and thus is the means toward a good society.

The one point at which Meiklejohn scores is in showing that Brandeis built a better theoretic base for Holmes’s "clear and present danger" doctrine than Holmes did.  "Those who won our independence by revolution," wrote Brandeis, "were not cowards.  They did not fear political change. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for free discussion.  If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.  Only an emergency can justify suppression." I agree that this is a superb statement, which incidentally shows up the shallowness and hysteria of the present "Red purge."   But far from destroying the Holmesian doctrine, it gives it a new intellectual force.

Where Meiklejohn is weakest is in his statement that "private speech, or private interest in speech, has no claim whatever to the protection of the First Amendment."   He suggests that if you are arguing for the interests of a lobby, a corporation, a pressure group, a trade union, seeking the advantage of a private group, you are not guaranteed free speech, but are protected only by the "due process" clause of the Fifth Amendment.

The trouble with this is that no one will admit he is seeking only his private interest.  All of us equate our interests with the public interest.  Most men are not philosophers, arguing about what the state should do as an abstract matter.   They are caught in the hurly-burly of life, and their passionate advocacies of the general good are all mixed up with their wages, profits, political preferences, hatreds and group allegiances.  Such a distinction as Meiklejohn makes would leave helpless the Hollywood Ten, fighting for their own jobs, and the Spanish Refugee Committee people, who were obviously members of a pressure group.  It won’t wash, either in constitutional law or political philosophy.

It is clear that all this is an effort to find a new base for free speech in the philosophy of an organic society, which gives the individual the right of free speech because it is best for the society that he have it, and denies it to him whenever he acts not for the society but for himself.  It reminds me a little of Jean-Paul Sartre’s present effort to found a "Fourth Force" which combines the idea of communism with the idea of complete freedom.  I sympathize with both efforts.   I, too, would like to have the best of both worlds.  But in the theory of free speech, it is an effort like trying to square the circle.  It can’t be done.

This review originally appeared in The New Republic, vol. 119, September 13, 1948, pp. 21-22.  We gratefully acknowledge permission to reprint Dr. Lerner's review, and thank his son Stephen Lerner and his literary executor Professor Robert Schmuhl of the University of Notre Dame for allowing us to do so.

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Commentary

Meiklejohn & Free Speech
by John P. Frank

On this fiftieth anniversary of Alexander Meiklejohn's great work, we turn back to Max Lerner's review of fifty years ago.  Lerner missed it, and fairly so.   Meiklejohn was planting a seed which was to grow into a great tree, and this had not yet happened when Lerner wrote.  But it did happen in time, and as it did the public sense of Meiklejohn changed--first viewing him as radical, then centrist, then conservative, and now somewhere in between.  Yet the tree stands tall.

Start with this fact: Justice Holmes was a pragmatist, Dr. Meiklejohn an idealist.   However similar their views in this or that respect, there is that sharp divide.   One of Holmes's most famous expressions is on the need for "free trade in ideas"--"that the best test of truth is the power of the thought to get itself accepted in the competition of the market."  This is James, this is Dewey, this is Holmes, this is Lerner, too--this is pragmatism.  There is no absolute truth, for there is no absolute; truth is that which can be "accepted in the competition of the market."  At bottom, truth was just another commodity in the marketplace.   Hence, it could never be absolute; it was expendable.  Free speech thus had its limits.  The best known example, of course, is Holmes's clear and present danger test.

The Meiklejohn theory is radically different.  It is a theory rooted in the Declaration of Independence.  It is premised on the idea that people have certain "unalienable rights."  If the rights of the people are "unalienable"--a Lockean concept--then the right of free speech, being unalienable, is absolute.  It is not subject to "clear and present danger" limitations.  This freedom, this core right, is not to be balanced, or contexualized, or "pronged" away by the judicial formulae of the moment, be they conservative, liberal, or libertarian.  Max Lerner had it right when he wrote that Meiklejohn was not one to "wear any man's intellectual blinkers."  That was true in 1928 when he delivered an in memoriam address in defense of Sacco and Vanzetti [New Republic, Sept.5, 1928, p. 69], and true in 1961 when he lashed out at the Supreme Court's balancing tests. [49 Cal. L. Rev. 4]

There is, thus, an enormous difference between the First Amendment of the jurist Holmes and that of the educator Meiklejohn.  When the Meiklejohn lecture was first published, I was of the Holmes-Lerner view.  Some three decades later, in 1977, I changed my view and became a Meiklejohn convert.  If our rights are indeed "unalienable," if that is principle and not propaganda, then the First Amendment cannot be tempered, and there is simply no room for any clear and present danger formulas.

Perhaps my basic point can be captured by a short story, one I have told before.

A Memorable Evening with Black & Meiklejohn

One mid-winter day in 1959-60, Justice Hugo Black's mind wandered from the argument before him.  He dashed off a note to his secretary with meticulous instructions for dinner.  Dr. Alexander Meiklejohn would be at the house at 6:30 p.m., a first-time guest.  She should reach Charlie Reich (the law clerk), and Lizzie Mae (the housekeeper).  A New York cut steak for Charlie.  Three tenderloins for the others, baked potato and one additional vegetable would be enough.

It was a memorable evening.  The two old gentlemen--Black was seventy-four, Meiklejohn eighty-eight--could not have been of more different background.  Black, almost entirely self-educated and in public life for over thirty years; Meiklejohn, a trained philosopher, former President of Amherst, and later founder of the Experimental College at the University of Wisconsin.  Black, interested in a New York cut and three tenderloin; Meiklejohn, a total ascetic.  Black, a great justice; Meiklejohn, universally esteemed as the foremost teacher of an era.

What brought them together was a common, yet very unusual, preoccupation with the First Amendment to the Federal Constitution.  By 1960, Black was the foremost judicial defender of the First Amendment, and Meiklejohn its foremost philosophic defender.   The meeting was a unique gathering of remarkable leaders, for Black and Meiklejohn were promulgating doctrines so old that they had become new again.  They, the first prominent exponents of this view in two centuries, asserted a common claim: an absolute right of freedom of speech derives from the underlying philosophy of the Declaration of Independence.

Professor Thomas Emerson captures the Meiklejohn-Black view well: "Once one accepts the premise of the Declaration of Independence--that governments derive 'their just powers from the consent of the governed'--it follows that the governed must, in order to exercise their right of consent, have full freedom of expression." [Toward a General Theory of the First Amendment 10 (1963)]  But are the people competent to perform the functions entrusted to them?  The proponents of freedom of political expression have long debated this question.  The men of the eighteenth century, with their explicit faith in the power of reason and the perfectability of man, entertained few doubts on this score.  Or as Meiklejohn once put it: "Any man or any nation which is afraid of ideas, any idea, is unfit for the great venture in freedom which is ordained and established in the Constitution of the United States." [Progressive, June, 1952, pp. 15-18]

These two, when they climbed the stairs to the Justice's study to go deep into discussion after dinner, had no doubts.  In that book-lined room they were, in an important intellectual sense, two eighteenth-century thinkers together in 1960.

Absolutism & Self-Rule

Meiklejohn and Black are the great exponents of the absoluteness of the First Amendment.  I do not think that Black was tutored in this regard by Meiklejohn.   These were strong minds going in the same direction from different origins, Meiklejohn from Plato and Black from the eighteenth-century English theorists.

Meiklejohn among philosophers and Black among justices never totally captured the field.  Black's last word on the subject was his concurring opinion in the Pentagon Papers (1971) case.  In that opinion (joined by Douglas) he argued that the "government's power to censor the press was abolished" by the First Amendment.   Today, we no longer speak of clear and present danger; we speak of "balancing," and this might come to pretty much the same thing.  Neither Meiklejohn nor Black, however, would have any part of it--this "weighing" of our First Amendment freedoms.

Meiklejohn was a free-speech absolutist precisely because he was an absolutist in respect to democracy.  His book was the first formulation of this view, and it has been the most important non-judicial utterance on speech for the half-century since he first spoke. Free Speech and Its Relation to Self-Government locates the jurisprudence of the First Amendment within political philosophy, within a philosophy of democratic government premised on self-rule.  Thus, the cause of the First Amendment always involved more than the facts of a case or the societal demands of the day--it involved a vision of what America must strive to be.  Today, that vision is being blurred out of existence by jurists who have no real sense of what it means for a people to be self-governing.

Perhaps more can be said in defense of Max Lerner's 1948 review of Free Speech and Its Relation to Self-Government.  I leave that for others to decide in the give-and-take spirit of the First Amendment.  For myself, I cannot write impersonally of Alexander Meiklejohn.  I admire him too much. His picture hangs on the wall of my office in Phoenix, Arizona as I write.  He was my professor of philosophy at the University of Wisconsin in 1938.  For the remainder of his life, and particularly after he moved to Berkeley, we were close friends, visiting and corresponding regularly.  For me, Alex was one of the greats of our century.

John P. Frank is a partner in the law firm of Lewis & Roca in Phoenix, Arizona.   He was a law clerk to Justice Hugo Black, and later a law professor at Yale Law School and elsewhere.  He has argued many important constitutional cases and is the author of numerous books and articles on constitutional law.  For his original review of Meiklejohn's Free Speech and Its Relation to Self-Government, see 27 Texas Law Review 405 (1949).  "That review," Mr. Frank now notes, "was written before Justices Murphy and Rutledge had died.  A dose of Chief Justice Vinson, McCarthyism, and the Dennis case made me understand that, for all its splendid rhetoric, 'clear and present danger' is a hollow phrase."  For a statement of his more current views, see his "Hugo L. Black: Free Speech and the Declaration of Independence," 1977 Illinois Law Forum 577, from which portions of this Commentary were taken.

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JURIST: Books-on-Law is edited by Ronald K.L. Collins and David M. Skover of the Seattle University School of Law.

Board of Editorial Consultants: Miriam Galston, George Washington University Law School; Kermit Hall, Ohio State University College of Law; Yale Kamisar, University of Michigan Law School; Lisa G. Lerman, Catholic University of America School of Law; David M. O'Brien, University of Virginia Department of Government and Foreign Affairs; Judith Resnik, Yale Law School; Edwin L. Rubin, University of California at Berkeley School of Law (Boalt Hall); Steven H. Shriffrin, Cornell Law School; Nadine Strossen, New York Law School; David B. Wilkins, Harvard Law School.

Administrative Assistant for Books-on-Law: Ms. Nancy Ammons

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