Justice Owen Roberts’ Most Memorable First Amendment Passages

Justice Owen J. Roberts (1875 – 1955) was a U.S. Supreme Court Justice perhaps best known for changing his view on the constitutionality of federal New Deal legislation that established the minimum wage.  His vote switch is colloquially referred to as the “switch in time that saved nine.”

But, Owen Roberts also authored several significant First Amendment decisions during his time on the High Court. Below are five of his more memorable passages on subjects such as freedom of assembly, freedom of religion, political dissident speech, and commercial advertising.

 

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”

Roberts wrote this line in Hague v. Committee for Industrial Organization (1939), ruling that a  group of citizens could convene in a public park in Jersey City for a political assembly.  Roberts’ passage above forms the basis for the public forum doctrine – the idea that certain types of public property are open to citizen engagement and First Amendment activity.

 

“In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor.”

Roberts authored this passage in Cantwell v. Connecticut (1940), reversing the convictions of Jehovah Witness Newton Cantwell and his sons for going door to door and preaching their religious faith.   Local officials charged the Cantwells with several offenses, including breach of the peace.   Roberts ruled that the convictions violated the free-exercise of religion rights of Cantwell and his sons, recognizing that in a free society people have very different religious beliefs.

“The power of a state to abridge freedom of speech and of assembly is the exception rather than the rule and the penalizing even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.”

Justice Roberts wrote this statement  in Herndon v. Lowry (1937), invalidating the conviction of labor agitator Angelo Herndon, who was punished by Georgia state officials essentially for being both black and a Communist.   Herndon was prosecuted and convicted under a state anti-insurrection law  for recruiting people to the Communist Party.   The Court narrowly reversed his conviction by a 5-4 vote in an opinion by Justice Roberts, who recognized that restricting speech should be “the exception rather than the rule.”

 

“If the state cannot constrain one to violate his conscientious religious conviction by saluting the national emblem, then certainly it cannot punish him for imparting his views on the subject to his fellows and exhorting them to accept those views.”

Roberts penned this passage in Taylor v. Mississippi (1943), invalidating a Mississippi law used to convict Jehovah Witness R.E. Taylor for passing out literature that criticizing the saluting of the American flag.   The Court issued this opinion the same day its more famous flag-salute decision West Virginia Board of Education v. Barnette (1943), in which the High Court struck down a West Virginia law that allowed for the expulsion of students for saluting the flag.   In the Taylor case, Roberts reasoned that the First Amendment protected individuals’ rights to imparting his or her views on flag salutes.

“We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.”

Roberts drafted this line in Valentine v. Chrestensen (1942), ruling that the First Amendment did not protect purely commercial advertising.   The case involved an entrepreneur F.J. Chrestensen who distributed leaflets on New York City streets, advertising his World War I submarine, which he showcased as an exhibit.     Roberts and his colleagues on the Court took a crabbed view on commercial speech, one which the U.S. Supreme Court would overruled in the 1970s.

 

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