William O. Douglas: ardent First Amendment defender

No justice in Supreme Court history has ever showed a stronger commitment to freedom of speech than William O. Douglas, who served on the Court for a record 36-plus years.

In his opinions and other writings, he consistently railed against government censorship, objected to obscenity prosecutions, criticized libel laws and fulminated against loyalty oaths.

In his book A Living Bill of Rights, Douglas wrote: “The argument against censorship is clear: no person should dictate our tastes, ideas, or beliefs. No official has the right to say what is trash or what has value.”

The following five opinions show Douglas’ passion for protecting freedom of speech.

Majority opinion in Terminiello v. City of Chicago (1949)

In this decision, the Supreme Court reversed the breach-of-the-peace conduct conviction of Arthur Terminiello, a former priest who gave a controversial speech in Chicago during a meeting of the Christian Veterans of America. Terminiello criticized Jews, communists and American leaders.

In his trial, the judge instructed the jury on the local ordinance under which Terminiello was charged, saying that it applied to speech that “stirs the public to anger, invites dispute, brings about a condition or unrest, or creates a disturbance.” Douglas addressed those jury instructions, crafting a passage that has endured in First Amendment jurisprudence:

“Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”

Dissenting opinion in Miller v. California (1973)

In this case, the Supreme Court created “guidelines” for jurors in obscenity cases, establishing what came to be known as “the Miller test.” This test was designed to make it easier for prosecutors to pursue obscenity charges.

Douglas dissented, articulating his view that there should be no obscenity exception under the First Amendment. He viewed the Miller test concepts of “prurient interest,” “patently offensive” and “no serious value” — under which material could be declared obscene — as inherently vague.

“Obscenity — which even we cannot define with precision — is a hodge-podge,” he concluded. “To send men to jail for violating standards they cannot understand, construe, and apply is a monstrous thing to do in a Nation dedicated to fair trials and due process.”

Concurring opinion in New York Times Co. v. United States (1971)

In this decision, often called the “Pentagon Papers” case, the Court ruled that the government could not prohibit The New York Times from publishing a secret government study on U.S. involvement in the Vietnam War. The Court viewed such government action as a classic prior restraint on speech, not justified under a national-security exception.

Douglas wrote separately to emphasize that the government did not have the authority under the Espionage Act to justify its actions. But he also wrote more generally about secrecy as antithetical to a democracy. “Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors,” Douglas said. “Open debate and discussion of public issues are vital to our national health.”

Concurring opinion in Rosenblatt v. Baer (1966)

In this libel case, the Court reversed a libel judgment in the New Hampshire courts and sent the case back down to the lower courts to handle under the Court’s new libel-law standards it had articulated in New York Times Co. v. Sullivan (1964).

Douglas’ concurrence questioned whether libel laws in general comported with First Amendment principles. “In my view the First Amendment would bar Congress from passing any libel law,” he wrote in declaring that the press should have carte blanche to write about public issues.

Dissenting opinion in Dennis v. United States (1951)

In this decision, the Supreme Court upheld the convictions of Eugene Dennis and 10 other members of the American Communist Party for violating the Smith Act – a law that criminalized advocating or teaching the propriety of the violent overthrow of the United States.

Douglas’ dissent criticized the majority for upholding convictions of persons for their noxious beliefs rather than for any concrete actions they had committed against the country.

“Unless and until extreme and necessitous circumstances are shown, our aim should be to keep speech unfettered and to allow the processes of law to be invoked only when the provocateurs among us move from speech to action,” he concluded.

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