Evening star., 1952-05-01
The Noes Have 1t

It is hardly necessary to state that our law
is shaped by the majority-not the minority
decisions Of the Supreme Court. There are occa-
sions however, when minority decisions, by the
power and persuasiveness Of their argument,
seem to overshadow and outweigh the majority
view. This is true of the courts 5-to-4 ruling in
the case Of Joseph Beauharnais OF Chicago.
The majority decision, written by Justice
Frankfurter sustained criminal conviction un-
der Illinois group libel law" The constitutional
question was whether the law infringes the guar
antees Of free speech and right of petition. The
majority while evincing no liking for the particu-
lar statute, held its enactment, and the convic-
tion under it of Beauharnais, to be within the
permissible limits of State activity.
The dissenters were Justices Black, Douglas,
Jackson and Reed. The latter two took particular
exception to the manner in which the law was
drafted or applied in this case, as distinguished
from the broader question of States power to
legislate against group libel" But Justices
Black and Douglas, while making clear their
dislike of intemperate attacks on a racial group
or class, went to the constitutional heart of the
matter.
Justice Blacks dissent was particularly force
full. Here, in part is what he said:
This act sets up system of State censor
ship which is at war with the kind OF free
government envisioned by those who forced
adoption of our Bill of Rights. The motives
behind the State law may have been to do
good. But the same can be said about most
laws making opinions punishable as crimes.
History indicates that urges to do good have
led to the burning Of books and even to the
burning Of witches.
No naturalization on purely legal level
can conceal the fact that State laws like this
one present a constant overhanging threat to
freedom of speech press and religion. Today
Beauharnais is punished for publicly express
ing strong views in favor of segregation.
Ironically enough, Beauharnais, convicted Of
crime In Chicago, would probably be given a
hero'S reception in many other localities, If
not in some parts Of Chicago itself. Moreover,
the same kind of State law that makes Beau
harnais criminal for advocating segregation
in Illinois can be utilized to send people to Jail
in other States for advocating equality and
non-segregation. What Beauharnais said in
his leafiet is mild compared with usual argu-
mentS on both sides of racial controversies.
We are told that freedom of discussion and
petition are in no danger while this court
SITS" This case raises considerable doubt.
Since those who peacefully petition for changes
in the law are not to be protected while this
court SitS," who Is? I do not agree that the
Constitution leaves freedom Of petition, as
sembly, speech press or worship at the mercy
of a case-by-case, day-by-day majority Of this
court had supposed that our people could
commands, rather than on the grace of this
court on an individual case basis.
To say that a legislative body can, with
this courts approval, make it crime to petit
ton for and publicly discuss proposed legisla-
ton seems as farfetched to me as it would be
to say that valid law can be enacted to
punish candidate for President for telling
the people his views. I think the First
Amendment, with the Fourteenth, absolutely"
forbids such laws without any "ifs" or "buts"
or "whereases." Whatever the danger, II any,
in such public discussions it is a danger the
Founders deemed outweighed by the danger
incident to the sitting of thought and speech.
The court does not act on this view of the
Founders It calculates what It deems to be the
danger Of public discussion, holds the scales
are tipped on the side of State suppression and
upholds State censorship This method of de-
ciSion offers little protection to First Amend
ment liberties while this court SITS"
If there be minority groups who hail this
holding as their victory, they might consider
the possible relevancy of this ancient remark:
Another such victory and am undone."
This dissent has the ring of authentic con-
stitutonal liberalism. It will be surprising II the
court, in future decisions, does not swing around
toward Justice Blacks point Of view.