Justice Hugo Black was the most emphatic “absolutist” in his defense of the First Amendment on speech and publication—he opposed even the laws on libel. He also mounted the most strenuous defense of people’s freedom to take their cries of protest into the public street.
Unless it was a demonstration outside the private home of Mayor Richard Daley of Chicago. That apparently went too far, even for Black, who thought that even as a public figure, Daley has a certain claim to his private home as a “sacred retreat.”
Or, as Black had put it just a few years earlier, shading the moral issue, the First and Fourteenth Amendments took away from governments at all levels the power “to restrict freedom of speech, press and assembly where people have a right to be for such purposes” (italics added). For Black, in the street outside Daley’s home was one of those places they did not have a right to be.
Black offered his hedging comment in dissent as his colleagues decided that a square outside a courthouse was another of those places people had no right to stage demonstrations when a trial was underway (Cox v. Louisiana, 1965). For there was a powerful need to avoid the impression than any verdict arrived at in the courthouse might be affected by the brute success of bringing a massive crowd into the street.
Justice Arthur Goldberg wrote for the court, but thought he could make distinction between demonstrations outside a courtroom and the demonstrators who sought to “protest the actions of the mayor” or some other figure in political office. Yet why was that the case?
As James Madison put it in the Federalist No. 10, “What are important acts of legislation but so many judicial determinations?” Aren’t legislators in the business of deliberating with their colleagues in order to treat the interests before them in a just and judicious way? If that’s the case, why would it have been any less subversive of the political order if the impression took hold that the decisions made in the legislative chamber would be tilted and determined by a massing of crowds in the streets?
The truth that dare not speak its name these days is that, with one or two notable exceptions, the ever-praised “demonstration” has always contained in its inner logic the premise—and the threat—that force rules. That curmudgeon of a philosopher, Thomas Hobbes (1588-1679), saw that inner meaning at once.
“It may be lawful,” he wrote, “for a thousand men to join to a petition to be delivered to a judge or magistrate; yet if a thousand men come to present it, it is a tumultuous assembly; because there needs but one or two for that purpose.”
A mass gathering in the street does not provide a format for discussion, nor is it a medium for conveying a substantive argument. The very point of it is make an impression on the authorities through the sheer force of numbers, to suggest wide support for the movement and perhaps political costs for resisting it.
The demonstration bids to carry the decisions of the day, in the halls of government, by its brute strength of numbers. It was just a covert or stylish way of saying “the Rule of the Strong.” Or, “Might makes right.”
If there are any notable exceptions, they would surely include the March for Life, which has taken place quite peacefully in Washington for 47 years on the anniversary of Roe v. Wade. This gathering has never conveyed an anger ready to break into violence. Nor does anger build as the march continues down Constitution Avenue and finds it terminus at the Supreme Court, the site from which this new right to abortion emanated as part of the law of the land.
The marchers have always carried a sense of despair about the taking of innocent life, as other demonstrators in the past carried a despair about the lives lost in Vietnam. But as one sees the joyousness of the youngsters who come with parents, the dominant mood is one of hope—that the practice of abortion may be scaled down and brought to an end. There has never been any menace in that gathering of marchers.
Yet Justice Antonin Scalia sounded a note of caution about the crowds of protestors, on either side, massing outside the Supreme Court. He deeply shared the understanding of the pro-life marchers, but could not put out of mind the meaning that must always attach to demonstrations: the hope that the decisions made by legislators and judges may be changed for the good by the massing of large numbers of earnest people with a burning concern.
Media commentators brought back some old language to suggest that the Jan. 6 attack on the Capital was an act of “sedition.” In that case the heated remarks of President Trump in stirring the crowd with hostility to some of the men contained in that building had to be an offense of “seditious libel.”
But 57 years ago, in New York Times v. Sullivan, the Supreme Court rejected the notion of seditious libel and intimated that the Sedition Act of 1798 had really been unconstitutional. As one sage commentator remarked, the court put the First Amendment on a new footing: the government may not freely use the laws of libel to silence its citizen-critics. And those critics should not be held to a strict standard of truth, because political speech is often heated, mistaken speech, and it needs “breathing space.”
Before he was chief justice, John Marshall defended the constitutionality, if not the prudence, of the Sedition Act; but he understood sedition to run beyond attacks on public officials. It could include, he thought, the effort to incite hatred against religious minorities and destroy the bonds that make for civic peace.
In the curious world of the media, it didn’t count as sedition when the federal courthouse was attacked in Portland, Ore. But even worse, they saw no trace of sedition or civic destruction when “protestors” in Portland, Minneapolis, Chicago, and Kenosha focused their assaults on small private businesses, destroying the livelihoods and savings of ordinary people.
Apparently the thugs in the cities were lesser offenders than the thugs at the Capitol, for they were clever enough to visit their assaults on people who bore no responsibility for the wrongs they were protesting.