The Magazine

Speaking Freely

The language of the Supreme Court on the subject of words.

Oct 26, 2009, Vol. 15, No. 06 • By KEVIN R. KOSAR
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Eloquence and Reason

Creating a First

Amendment Culture

by Robert L. Tsai

Yale, 216 pp., $45

As a schoolboy I had textbooks with photographs of the justices of the Supreme Court. In their black robes, they looked so very old and serious. What little information the books provided about these people stoked my reverence. They hailed from Harvard, Stanford, and other places far away from my hometown in Ohio, places populated with brilliant people who became the powerful people who appeared on the nightly news show that my mother and I watched â "senators, diplomats, and the rest.

Many nights I went to bed dreaming that one day, maybe, I could be a Supreme Court justice. I wanted to sit in one of the high-backed chairs on the dais as attorneys debated whether a particular statute offended the Law of the Land. I imagined myself at the center of terrific logical exchanges, parsing the precise language of the Constitution and analyzing the facts of a case. Ultimately, we the Court would come to a super-rational explanation that would irrefutably decide the matter for all time.

I understood that not every case had an easy answer. The Fourth Amendment forbids â unreasonable searches and seizures. â But what constitutes a search? May the FBI use infrared technology to peer into a home without obtaining a warrant? And I knew that the Court had goofed on occasion, such as when it decided in Dred Scott v. Sandford (1857) that blacks were not citizens. Nonetheless, I had faith that the Court usually would divine the truth.

Neither my schools nor my local library carried the United States Reports, the repository of Court decisions, so I did not read any Supreme Court decisions until I reached college. When I did, I found many of them shocking. Instead of providing an exegesis and an application of the Constitution, justices were armchair-philosophizing about the nature of America and her system of governance.

When I read Palko v. Connecticut (1937), which featured a crook twice convicted in Connecticut for the same murders, I felt like digging up Justice Cardozo and barking at him, â What the devil is a â scheme of ordered liberty â and where do you find such words in the Constitution? â With just a single course in philosophy under my belt, I could identify fallacies and slippery rhetorical maneuvers in opinions. The scales fell from my eyes.

Reading Robert Tsai â s provocative Eloquence and Reason, I am reminded of the experience of losing my na -vet in things legal. Tsai, a professor at the American University law school, depicts how the Court has transformed the nature of the First Amendment by pouring new meanings into its words. In a mere century, the Court has made stunning alterations to the freedoms of speech, assembly, and religious exercise, and transmogrified the Amendment â s prohibition against making a law â respecting an establishment of religion. â

Tsai argues that the Court has been able to pull off this feat by employing stirring rhetoric and powerful metaphors. Thus, over the past century, it has likened the act of speaking in a public place (in Justice Holmes â s words) to falsely shouting Fire! in a crowded theater, to lawful assembly in the grand tradition of democracy, and to the peddling of wares in a â marketplace of ideas. â When one metaphor ceases to provide the desired results, the Court crafts a new one.

Stanley v. Georgia (1969) is a particularly colorful example of this phenomenon. Law enforcement agents raided the home of Robert Stanley, suspecting that this bookie was up to his old tricks. They found no gambling materials, but the police did discover some pornographic films. Stanley
was arrested, tried, and convicted for violating a state statute forbidding the possession of â obscene matter. â

After losing in Georgia â s Supreme Court, Stanley appealed to the U.S. Supreme Court, complaining that Georgia â s law violated his freedom of speech. Prima facie, the case looked like a sure loser for Stanley. The First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Can anyone say, with a straight face, â Why yes, the denotations of the words â freedom of speech â clearly encompass the possession of pornographic films â ?