Judicial Activists, Judicial Self-Deniers, Judicial Review, and the First Amendment – Or, How to Hide the Melody of What You Mean Behind the Words of What You Say

Abstract

In the early evening of March 8, 1948, a college student named Irving Feiner was standing on an actual soap box at a street corner in Syracuse, New York, speaking in occasionally abusive language in behalf of Henry Wallace's absurd bid for the United States presidency. Of a crowd of seventy-five or eighty, one or two men threatened Feiner; a policeman thereupon ordered Feiner to shut up and climb down; Feiner refused; he was arrested and sentenced to thirty days in the penitentiary. His conviction, protested up to the Supreme Court, was there upheld, six to three. Said Justice Frankfurter, characteristically in concurrence: "Where conduct is within the allowable limits of free speech, the police are peace officers for the speaker as well as for his hearers. But . . . ." And again: "Enforcement of these [breach-of-peace] statutes calls for public tolerance and intelligent police administration. These, in the long run, must give substance to whatever the Court may say about free speech. But . . . ." Said Justice Black, in dissent: "I think this conviction makes a mockery of the free speech guarantees of the First and Fourteenth Amendments. . . . I will have no part or parcel in this holding which I view as a long step toward totalitarian authority." There were no But's.