Evening star., 1949-05-18
Free Speech-und Its Abuse

Once again an issue Of free speech has
split the Supreme Court along the familiar
fve-to-four line. But this time the major
ity claims to have rested It's position on a
narrow, technical ground.
The case before the court involved the
arrest and conviction OF Arthur Terminiello
for an infiammatory speech made more
than three years ago Terminiello, q
Catholic priest. was under suspension by
his church at the time he spoke in Chicago
under the. auspices of Gerald L. K Smith.
The affair followed well known pattern.
The meeting addressed by the priest. as
well as his speech, had Fascist character
1stics 1t was picketed by a mob that
employed the Communist techniques. The
result was violent, riotous scene.
Terminiello was fined 500 on the theory
that his remarks were an incitement to
violence, and therefore not within the
protection which the Constitution extends
to freedom Of speech. The Supreme Court
reversed the conviction. But 1t did so with
out passing, or at least without passing
directly on the question whether the
things Terminiello said were or were not
protected by the Constitution. Justice
Douglas, speaking for the majority said
us ruling turned on preliminary ques-
ton, on finding that some OF the Ian
guage used by the trial Judge in his charge
to the jury was so loose and so broad that
the conviction could not stand.
This brought sharp dissents from Chief
Justice VinSon and Justice Frankfurter,
the latter being joined by Justices Jackson
and Burton. But these dissents ran to the
proper relationship between the Supreme
Court and the State courts. Apparently
there had never been any objection to the
trial judges charge until the Supreme
Court majority raised 1t. In other words,
the Supreme Court reversed the courts of
Illinois on an issue that was never pre-
sented in the lower tribunals. To the
layman this is rather technical, but the
dissenting justices regarded 1t as a serious
and reprehensible form of meddling by
the Supreme Court.
The really bliStering dissent, however,
came from Justice Jackson, who was Joined
by Justice Burton.
In his view the majority ruling Is not
restricted. He believes that It's effect Is
to tie the hands Of municipal authorities
so they cannot curb speeches which lead
to violence. Justice Jackson reviewed the
history of the rise of totalitarian move
ments, pointing out that main technique
OF both the Right and the Left in Europe
has been mob violence masked as protest
demonstrations. Past decisions Of the
court have held that speech can be curbed
when words are used to create q clear and
present danger to peace and order. Justice
Jackson thinks that this latest decision
abandons that doctrine and substitutes a
dogma Of absolute freedom for irrespon-
sible and provocative utterance which
almost completely sterilizes the power of
local authorities to keep the peace as
against this kind of tactics"
The majority opinion, of course, dis
claims such intent, but there Is muddy
language in it which affords some basis
for Justice Jackson's Interpretation. In
any event, the import OF the decision is
clothed in enough doubt to lend point to
Justice Jacksons citation of an old proverb
which warns us to take heed lest we walk
into we'll from looking at the stars"