Thomas Emerson
Constitutional Scholar and Professor at Yale Law School
First Amendment Theorist
Emerson is not simply committed to the due process of law; he is addicted to it.
Co-Founder of the Emergency Civil Liberties Committee (E.C.L.C. founded in 1951) Defended the rights of Communists and those on the Attorney Generals list of subversive organizations. (p.144)
A member of the A.C.L.U.
Pushed for Womens equality under the law...led to Equal Rights Amendment.
Law Cases:
Griswold Vs. Connecticut (use of contraception..groundwork for Roe vs. Wade)
Sweezy Vs. New Hampshire
Wrote the Amicus brief in Sweatt Vs. Painter (Court rejected state-mandated racial segregation in American legal education.)
1966 Toward a General Theory of the Fist Amendment
The first time his Expression-Action theory appeared.
1967 Political and Civil Rights in the United States (Co-authors: Haber and Dorsen)
1970 The System of Freedom of Expression
A Libertarian approach to the First Amendment Freedom of Expression includes the right to form and hold beliefs on any subject and to communicate those beliefs to others by whatever medium one chooses whether by traditional means, oral or press, or by other means, music and art.... Includes the right to hear the opinions of others, the right to inquire, reasonable access to information, and the right of assembly and association. (p. 1)
The principal task is to apply the basic principles which underlie the system of freedom of expression to the solution of concrete problems which arise in the operation of the system today....the basic theory has remained unchanged but the conditions whi ch it must now be applied have greatly altered. (p. 5&6) (For example Symbolic Speech: draft card burning, flag burning, armband cases)
Democratic Society, freedom of expression:
1) Achieving individual self-fulfillment...the mind must be free, essential nature
2) Advancing knowledge and discovering Truth (John Stewart Mill)
3) Making decisions democratically (Governments get power from governed....freedom of expression to Religion, literature, art, science and all areas of human learning and knowledge.
4) Achieving a more adaptable and hence a more stable community, of maintaining the precarious balance between healthy cleavage and necessary consensus. (p. 7) (Freedom of expression essential element in a good society). (p. 8)
He believed that the tests used by the Court:
Bad Tendency, Clear and Present Danger, Incitement, and different forms of the Ad Hoc Balancing Test were to vague.
He proposed the Expression-Action Position. (A difference between the terms)
1) Expression: belief, opinion, and communication of ideas (freely allowed and encouraged)
2) Action: conduct (can be controlled by the Constitution state or federal law) Expression is normally conceived as doing less injury to other social goals than action. Need to draw a protective and precise line between expression and action. An individual must know the extent of his rights and have assurance.
The role of law is to mark and guard the line between the sphere of social power, organized in the form of the state, and the area of private right. (Judicial Institutions)
Legal Institutions for free expression are:
1) Constitution
2) Judiciary branch which is independent and has Judicial review capability
3) An independent bar.
Covers four areas in the book (Sedition, Defamation, Obscenity, Provocation to Anger)
a) Sedition:
1) Expression-- advice and persuasion, some symbolic means of communication (burning draft card) anti-democratic views are protected.
2) Action-- Instructions and preparations that go beyond advice and persuasion. (Treason, physical obstruction of doorways and streets, and extreme forms of symbolic activity....pouring blood on draft cards.) Not Protected.
b) Defamation:
1) Expression-- all remarks concerning public issues (protected.)
2) Action-- private libel, right to reply is preferable to law suit.
2A) when harms person feelings, then Not Protected. defamatory assault.
c) Obscenity:
1) Expression-- Books, films, theatrical presentations, sculpture, paintings would be Fully Protected.
2) Action-- Live conduct, (live sex shows, and trusted sexual material in front of non willing receivers) is Prohibited.
d) Provocation to Anger:
1) Expression-- Speaking that is intentionally insulting or otherwise provocative is Protected...The audience has a duty to restrain itself.
2) Action-- Face-to-Face direct encounter so as to provoke a fight, becomes an act of violence and is Not Protected.
Emerson summarizes, but does not necessarily agrees with four occurrences under a mandatory-access rule: (Refutes Barron proposition)
1) Newspaper require to accept editorial advertising of controversial views
2) A personal attack rule, like the FCC, for newspapers
3) Letters-to-the -editor section expanded for opinions that differ from the paper
4) Fairness requirement, overall balanced coverage on public issues.
Advancement of Speech:
* Judge Louis Pollak, more than merely authoritative, it is a work which is reordered the line of inquiry for those who have come after.
* The result of the Supreme Court's constant shifting of position without formulating a coherent theory has been to leave the lower courts, public official, and private citizens in a state of confusion over the applicable rules. (p. 719)
* Emerson tries to advocate a new legal precedent to judge freedom of speech by. Thomas tries to set up greater freedom of speech capabilities by his expression-action theory. He professes a stronger stance on the liberty to speak than most legal scholars at this time.
* A further contribution to free speech might be indirectly through a few of his students---Supreme Court Judge Clarence Thomas, and President Clinton!
Bibliography:
Editorials. The Nation since 1865. Emerson, Thomas. Volume 253, No. 4.
Editorials. The Nation since 1865. Obituary of Thomas Emerson. Volume 261. No. 2.
Emerson, Thomas I. The System of Freedom of Expression. Vintage Books New York, 1970.
Tedford, Thomas L. Freedom of Speech in the United States. McGraw Hill, Inc. Northwestern University,1993.
Information by Michael J. Fernandes