Michael J. Fernandes
Harry Kalven Jr.
Educator, Attorney and Civil Libertarian
1914 Sept. 14, Born in Chicago
1935 Graduated form University of Chicago
1938 Graduated with J.D. from University of Chicago
1939 Admitted to Illinois Bar
1942-45 Served with armed forces
1945- Started teaching at the University of Chicago Law School
1963 Defended Lenny Bruceıs obscenity appeal to the Illinois Supreme Court
1974 Died of Heartache at home in Chicago working on A Worthy Tradition
Published:
1953 Uneasy Case for Progressive Taxation
1959 Cases and Material on Torts
1959 Delay in the Court
1965 Public Law Perspectives on a Private Law Problem
1965 Negro and the First Amendment (The absence of seditious libel as a crime is the true pragmatic test of freedom of speech. p.16)
1966 The American Jury (a definitive and laudatory tome of the U.S. jury system)
1974 A Worthy Tradition Freedom of Speech in America (He sees not only the right to speak against the government but also the rights of belief and association as significant to a fully- formed approach to the freedom of speech (p.387)
The speech-action dichotomy expounded by Justice Goldberg in Cox Vs. Louisiana criticized by Kalven because the concept is lacking in precision of definition and therefore a threat to legitimate rights of petition and assembly. (p.277)
A Worthy Tradition (started in 1970 but unfinished; didn't get to section 3; finished by son Jamie Kalven) Kalven proposes to examine the tradition of free speech in America together with the record of the Supreme Court as the institutional guardian of that tradition. Kalven refutes the use of theories to examine the First Amendment Kalven had great faith in the common law process with its capacity for growth and self-correction... The law working itself pure. Traces Supreme Court decisions (opinions and dissents and gives his take on it)
1) Content of Speech
2) Freedom of Association
3) Non content Regulation of Speech
The Regulation of Speech Content:
Untouchable Content:
Vast majority of speech is not challenged in court because it is generally accepted as protected
a) Heresy/Religious Heresy
b) False Doctrine/Nonreligious False Doctrine
c) Obscenity that is Tasteless and Vulgar/ Poor Taste Minor Jurisdictions of Censorship:
a) Contempt Citations (court orders to protect the integrity of a trial are sometimes O.K. The Supreme Court has kept this form limited)
b) Obscenity Kalven agrees that society has a legitimate interest in protecting children form explicit sexual materials but other than that, obscenity laws are more the product of fierce political passion than of scientific evidence. Censorship cannot be justified in the case of consenting adults, in view of the cost of regulation and the absence of any compelling state interest in policing the sexual fantasies of adults. (386) Obscenity laws are foolish and trivial
c) Libel Kalven praised the Supreme Courtıs decision in New York Times Vs. Sullivan which narrowed the application of libel laws mainly to private individuals. By requiring those in public life to accept harsh and sometimes false criticism. ³managed largely to recover an important category of speech from the sphere of traditional censorship. (386) Not opposed to private individuals law suits for defamatory falsehoods.
Major Jurisdictions of Censorship:
a) Incitement to Illegal Action
1) attempting to incite others
2) inciting the audience to retaliate against the speaker
b) Political Heresy subversive advocacy Political speech is at the heart of the First Amendment and should be absolute with only incitement to immediate illegal action is not protected (Brandenberg 1969)
The Negro and the First Amendment Chapter #1
Group Libel, Seditious Libel, and Just Plain Libel
The Beauharnais Case is important because it puts to the court so clearly a kind of speech problem which reveals the incompleteness of a speech theory keyed exclusively to clear and present danger (44). Group defamation does not readily present anything that can be called a clear and present danger (15). Beauharnais Case: the defendant was the president of the White Circle League of America passed out a leaflet petitioning to the mayor and city council preserve and protect white neighborhoods from the constant and continuous invasion, harassment a nd encroachment by the Negroes... If persuasion and the need to prevent the white race from being mongrelized by the Negro will not unite us, then the aggressions, rapes, robberies, knives, guns, and marijuana of the Negro surely will² (23-24). (The Illinois state government believed that this statement would cause violence and disorder between the races, and riots would eventually result.)
Defendant offered to prove the statements as true but the trial judge left the jury the uncontroverted fact that the defendant did distribute the leaflet.
If an utterance directed at an individual may be the object of criminal sanctions we cannot deny to a state power to punish the same utterances directed at a defined group (28).
Justice Reed argues that Illinois statute is unconstitutional vague. Also, the trial judge took the issue of defamation away from the jury. The words derision and obloquy are ambiguous. Truth as defense, Fox Libel Act Beauharnais was making a genuine petition for redress of grievances.
Cantwell vs. Connecticut-- for the first time the court takes an explicit position toward making truth and falsity irrelevant. Erroneous statement is inevitable in free debate and must be protected if the freedoms of expression are to have the breathing space they need to survive. Secondly, the court is moved by the difficulties of proving truth in these matters and, the refore, of putting the speaker to the risk of proof before fallable judges, juries, or administrative officials... We must in effect overprotect speech in order to protect it all (61).
Chapter 2
Anonymity, Privacy, and Freedom of Association:
Supreme Court in a series of cases involving specific efforts by Southern states to limit, control, and discipline the NAACP (65) In 1959, the Arkansas legislature enacted a statute making it unlawful for any member of the NAACP to be employed by the state or any of its subdivisions or agencies; a non-NAACP affidavit was required as a condition for public employment (70). Supreme Court made it unconstitutional in imposing arbitrary conditions on public employment in the sensitive area of teaching (72). Membership disclosure would violate First Amendment rights. Right to associate for the purpose of group advocacy is fully protected. If not protected it would adversely affect the ability of petitioner and its members to pursue beliefs that may induce members to withdraw and others from joining through cons equences of exposure. The state's legitimate area of difficulty is that it cannot connect up its need for the names with its avowed purpose in asking for them... The state must offer good reason for needing such information (97).
Chapter 3
Trespass and the First Amendment
Negro protest includes boycott, sit- ins, marches, strikes, picket lines, self- help tactic. Demonstration, like speech, appeals to good sense and to the power of reason as applied through public discussion just as much as a public oration... The act of sitting at a privately owned lunch counter, with the consent of the owner, as a demonst ration of opposition to enforced segregation is surely within some range of protection (130). The Negro protest is directed at the general public, and the grievances which the Negro is airing has constitutional status (135). The only value which the court may hold to counterbalance fully the right to speak appears to be the right not to listen (158).
In brief, I'm stuck.
Contribution to Freedom of Speech:
Believes obscenity to be foolish and trivial outside the scope of children. He believes that anything should go. I believe that his major contribution was professing the idea that group libel should not be punishable because it does not verge on clear a nd present danger test that was enacted, and because it is to restrictive on first amendment rights. Harry also believes that speech should be protected from organizations/government who desire it. It is your free choice and free speech to tell the m or not...if you do not want to tell that is your business and thus, it should be protected. Kalvenıs last point is that protest is a form of free speech/language and should fall under the umbrella of the first amendment. He believes symbolic action s should be protected.
Bibliography:
Kalven, Harry Jr. A Worthy Tradition: Freedom of Speech in America. Harper and Row Publishers. New York, 1988.
Kalven, Harry Jr. The Negro and the First Amendment. The Ohio State University Press, 1965.
Kurland, Philip B. Free Speech and Association: The Supreme Court and the First Amendment. the University of Chicago Press, 1975.
Tedford, Thomas L. Freedom of Speech in the United States. McGraw- Hill, Inc. 1993.
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