Year: 1961
Type: article
Abstract: In a recent article in Harper's Magazine, Professor Charles Black sought to explain and buttress Mr. Justice Black's position on the Bill of Rights.The argument is so new and appealing-its implications with respect to the judicial process are so provocative-as to invite consideration in a learned journal.Since Professor Black wrote in broad and non-professional terms, it seems appropriate to respond in kind.No past or present Justice, and no responsible commentator, has ever suggested that the Bill of Rights gives an absolute right to say whatever one might choose to say at any time and any place.To quote Professor Black, "No one would argue, for example, that. . .'free speech' ... includes mere personal slander, or fraudulent oral misrepresentation of goods offered for sale, or perjury on the witness stand.. .." or (in Holmes' famous phrase) shouting "fire" falsely in a dark and crowded theater.It follows then, that in close cases the essence of the judicial function is to balance conflicting interests in the context of the circumstances in which they clash.This is what the Court purports to do, and what Professor Black agrees it must do.His point (bluntly put) is that the Court should insist (pretend?) that free speech is an absolute -while it does the inevitable balancing by manipulating the definition of "free speech."Professor Black admits that "in a purely logical sense" it really makes no difference which approach is used.In either case "free speech" gets balanced off against more mundane interests.We must look, then, for an extra-logical-perhaps irrational-justification for the unorthodox position.Its value is said to be psychological: "what is really on the scale is attitude."A judge who talks in terms of absolutes (even though with tongue in cheek) reveals a more reliable attitude, it seems, than one who makes no bones about what he is doing, who balances openly and not under the guise of defining.Of course, Professor Black has no sympathy for subterfuge and he knows
DOI: 10.2307/1598713
Authors: Wallace Mendelson, Charles L. Black
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2798246645