Charles Evans Hughes served on the U.S. Supreme Court on two different occasions – first as an associate justice (1907 – 1916) and then as chief justice (1930 – 1941). In the meantime, he pursued a political career that nearly led him to the Presidency of the United States. As constitutional scholar John R. Vile writes, “Hughes generally ruled favorably on behalf of civil liberties, especially First Amendment freedoms.”
In the following passages, Hughes writes eloquently about leafletting, freedom of the press, prior restraints, peaceable assembly, and public order.
“The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.”
Hughes authored this passage in Lovell v. Griffin (1938), a decision in which the Court invalidated the conviction of Jehovah Witness Alma Lovell for distributing religious pamphlets in the city of Griffin, Georgia, without a permit. Under the ordinance, individuals could distribute such pamphlets only with the permission of the city manager. The Court invalidated the ordinance as unduly restrictive of First Amendment rights. Hughes explained that freedom of the press encompasses far more than just traditional newspapers and emphasized the historic importance of leaflets.
“Charges of reprehensible conduct, and in particular of official malfeasance, unquestionably create a public scandal, but the theory of the constitutional guaranty is that even a more serious public evil would be caused by authority to prevent publication.”
Hughes railed most famously against censorship in Near v. Minnesota (1931), still considered the Supreme Court’s seminal decision against prior restraints. Officials sought to shut down publisher Jay Near’s Saturday Press as a public nuisance. Hughes viewed this effort and this statute that allowed the designation of a publication as a public nuisance to be anathema to the First Amendment. As he writes in the above passage, the “more serious public evil” would be preventing publication.
“The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”
Hughes believed deeply that the First Amendment protected political dissident speech. He viewed such as necessary in a constitutional democracy so that change, if it occurs, can be peaceful instead of violent. He wrote the above passage in Stromberg v. California (1931), invalidating the conviction of a young woman named Yetta Stromberg under a state law that criminalized the display of a red flag as “an emblem of opposition” to the government. Stromberg was a counselor at a Communist youth camp. Hughes reasoned that the California law punished peaceful political speech. The case also stands for the principle that the First Amendment protects much nonverbal expression.
“The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”
Hughes wrote this passage in De Jonge v. Oregon (1937), invalidating an Oregon law that was used to punish Dirk De jonge for participating in a Communist Party meeting. Hughes stressed that a free society must protect individuals’ right to gather together lawfully and to discuss political issues even if those individuals disagree vehemently with the established order or existing government. “The holding of meetings for peaceable political action cannot be proscribed,” Hughes wrote. “Those who assist in the conduct of such meetings cannot be branded as criminals on that score.”
“Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.”
Hughes ruled in favor of First Amendment claimants in several landmark decisions. A notable exception is Cox v. New Hampshire (1941), a decision upholding the ability of city officials to require those using the public streets in groups to obtain a permit before engaging in such activity. The challengers were five Jehovah Witnesses, who along with more than 60 others, were preaching in the public streets without obtaining a permit. Hughes reasoned that society must have order in order to properly protect civil liberties.
David L. Hudson, Jr. is a First Amendment scholar who has authored, co-authored, or co-edited more than 40 books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and The Handy Supreme Court Answer Book (Visible Ink Press, 2008).