First Amendment Absolutism

First Amendment Absolutism Among the several attempts to draw a line between constitutionally and legally appropriate application of the quintet of First Amendment guarantees—separation of church and state, free exercise of religion, freedom of speech and the press, freedom of peaceable assembly, and the right to petition the government for redress of grievances—a claim to an “absolutist” right of their exercise has perhaps been the most sweeping and the most dramatic. Associated most closely with the views Justice Hugo L. Black, the absolutist stance requires a reading of First Amendment rights that permits no “balancing” (See First Amendment Balancing) of individual and societal rights but instead insists that the enumerated First Amendment guarantees are absolute in and of themselves and that they cannot be infringed by any governmental action that would inhibit their exercise.

As Black intoned again and again, the First Amendment command that “Congress shall make no law … abridging the freedom of speech or of the press” means precisely that neither Congress nor, by later implication, the several states have the authority to make any law that would “abridge” those stated prerogatives. To proffered demurrers, usually beginning “But, Mr. Justice,” Black's instant if gentle response would be, “But, nothing.” Lifting the ten‐cent copy of his beloved Constitution from his pocket, he would ask his questioner to read the words of the First Amendment. When the latter would reach the phrase “no law,” Black would utter a soft “thank you” and observe that the language at issue required an absolutist interpretation as to the exercise of the precious constitutional guarantees involved—that, if the issue dealt with expression qua expression, there simply could be no limitation placed upon it.

To qualify for absolute protection, however, the claimed First Amendment right had to be “speech,” “press,” “peaceable assembly,” or bona fide “religion.” If it was not, it was not entitled to absolutist privileges and thus could be subjected to permissible governmental regulation. Here, then, appeared the controversial line that Black and his followers would attempt to draw, giving rise to a chorus of criticism. For example, “speech” and “press” connoted absolute rights—but “conduct,” however, did not. The latter could thus properly be controlled by governmental action, within the limits of due process of law. Hence, while speaking and printing are, in the eyes of absolutists, immune to governmental strictures—including what others might consider libelous or slanderous statements or obscenities, be they visual or spoken—“conduct” is not similarly protected.

Such activities as public demonstrations, certain types of public assemblies, and flag defacing (Street v. New York, 1969) were subject to regulation in Black's view—a position that is still utilized by some judges and justices. For some jurists flag‐burning constitutes an exercise of freedom of speech (Texas v. Johnson, 1989; United States v. *Eichman, 1990), but to others (Black certainly would have been among them) such an activity is clearly proscribable conduct. Black and his supporters found a peaceable demonstration in front of a legislative hall to be a valid exercise of a First Amendment right (Edwards v. South Carolina, 1963) but rejected the First Amendment claims of those who had demonstrated in the front lobby of a jail (Adderly v. Florida, 1966) and on a crowded street (Cox v. Louisiana, 1965), where the demands of law and order were seen as justifying restraints by the authorities.

Slander and libel laws, in Black's view, were utterly unconstitutional on their face, for they inhibit the freedom to speak and write. The same reasoning governed the showing of films or the printing of books: for the First Amendment absolutist, censorship is simply incompatible with the amendment's guarantees. Yet such symbolic expressive manifestations as wearing black armbands in public schools as a protest against the Vietnam War (Tinker v. Des Moines Independent community School District, 1969) and an antidraft expletive emblazoned on a leather jacket worn by a young man in a courthouse (Cohen v. California, 1971) were viewed by Black, in dissent, as conduct subject to regulation or even prohibition (See Nonverbal Expression).

Although First Amendment absolutism continues to be embraced by jurists as well as pundits and though the liberal jurisprudence of the modern Supreme Court may have reached a “near‐absolutist” level of protection for most forms of expression, the doctrine itself does not command majority support. Deceptive in its simplicity and arguably appealing in its generosity to the exercise of individual freedoms, absolutism has necessarily been subjected to balancing between individual and societal prerogatives and responsibilities.

Bibliography

Henry J. Abraham , Freedom and the Court: Civil Rights and Liberties in the United States, 5th ed. (1988).

Henry J. Abraham