The Volokh Conspiracy
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Today in Supreme Court History: August 16, 1933
8/16/1933: President Roosevelt adopts the Code of Fair Competition for the Governance of the Petroleum Industry. The Supreme Court declared those codes unconstitutional in Panama Refining Co. v. Ryan (1935).
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Russo v. United States, 404 U.S. 1209 (decided August 16, 1971): Douglas dissolves a Ninth Circuit stay of contempt conviction; applicant refused to answer grand jury questions and cites the circuit split on whether under the Omnibus Crime Bill of 1968 one can refuse if subpoena to testify was based on information gathered by illegal wiretapping; Douglas would normally jump at this, but no actual evidence of wiretapping
Bateman v. Arizona, 429 U.S. 1302 (decided August 16, 1976): Rehnquist denies bail to defendant convicted of marital sodomy who on cert will argue that consensual sodomy falls within right to privacy (but jury found that there was no consent!) (unsurprisingly, cert denied, 429 U.S. 864)
Board of School Comm’rs of Mobile Co. v. Davis, 84 S.Ct. 10 (decided August 16, 1963): Black refuses to stay desegregation order because it was made in accordance with Brown v. Board of Education and clear evidence that such an order was necessary (another example of former Ku Klux Klansman Black getting tough on his home state)
captcrisis, what do you make of Justice Black?
I have read that he was something of a 1A literalist. Was he?
What makes Justice Black stand out, in your mind?
Justice Black was famously a First Amendment absolutist.
However, that did lead to some uncomfortable contortions in logic, wherein he had to define certain things as “not speech” in order to reach reasonable results. Famously, for example, he didn’t believe that a lot of expressive conduct was speech, and while he was an absolutist in terms of censoring or regulating speech, he also thought that people weren’t allowed to speak whenever and wherever the wanted (?), which was kind of a personal time/place/manner test.
In that way, Black is a lesson for Second Amendment absolutists as well, which is that in actuality, absolutist reasoning (“no law means no law”, “what part of shall not be infringed don’t you understand?”) doesn’t work very well when dealing with substantive rights, because you end up having to just define the obvious things that the government can regulate- i.e., even non-controversial regulations- as “not within the right”.
There’s no magic bullet simplistic solution for actually doing legal reasoning, considering competing interests and context, etc. But especially on the right, there’s a bunch of rhetoric that basically accuses anyone who rejects Simpletonism of “ignoring the Constitution”.
I’ll underscore that point.
“Congress shall make no law” sounds pretty absolute; “no law” means “no law”. However “the right of the people to keep and bear arms” is not. What is (or was) the nature of that “right”? No right is absolute. Any that you can think of is situational, and has always been limited by exceptions, both by common sense and by tradition and custom and practice.
Sure, but “freedom of speech” is analogous to “the right of the people to keep and bear arms”. “No law” is analogous to “shall not be infringed”. (I will leave the preface of the Second Amendment aside in this discussion since that drives gun rights types bats.)
And both “freedom of speech” and “the right of the people to keep and bear arms” are vague categories that courts can define in various ways.
The real point is one way or another you have to consider competing interests, because that’s what rights are supposed to do- provide a rubric for resolving claims between competing interests. Pointing to the absolutist language doesn’t get you out of the problem.
Thanks for asking.
Loki13 is correct as always.
The 1A says “Congress shall make no law . . .” and Black was fond of saying, “‘no’ to me means ‘no’”. His attitude has been called “simple minded” which I think is unfair. In obscenity cases he refused to even look at the materials at issue.
As the 1960’s wore on though he seemed to lose his patience. In the “Fuck the Draft” case, Cohen v. California, 1971, he sided with Blackmun’s dissent who called it an “immature antic”.
How does one go from being a “First Amendment absolutist” to being on the dissent in Cohen?
(Dissent) “Cohen’s absurd and immature antic, in my view, was mainly conduct and little speech.”
What did they call speech then?
Literally only air coming out of someone’s mouth?
Black was an absolutist (no means no) when it came to speech.
But he definitely carved out an exception for expressive conduct. If you look at the dissent by Blackmun, you can see that it was written to get Black on board by referred to the conduct- and by citing prior opinions (such as a case upholding a conviction for flag burning) construing things we consider speech as conduct.
In other words, under Black’s beliefs, this wasn’t pure speech- this was conduct- an “antic” of doing something objectionable, not criminalized for the speech value, but for the conduct of endangering public safety- Black had similar reasoning regarding falsely yelling fire in a crowded theater; it wasn’t speech, it was conduct that endangered public safety.
As I noted above, Black’s free speech absolutism did advance the cause of free speech a lot, but it also led to some interesting intellectual conundrums in terms of “what is speech.” Also, captcrisis correctly notes that Black seemed to get crankier with age. 😉
I am getting a little crankier with age too. ????
I appreciated reading the comments, loki13. I learn.
today’s movie review: Reds, 1981
Left-wing factionalism, depicted as it actually happened, which reveals that playing it for laughs (as was done in Monty Python’s Life of Brian) doesn’t require a whole lot of changing around. Here the journalist John Reed (Warren Beatty) witnesses the Bolshevik Revolution and gets carried away trying to organize American workers along Communist lines, without success. His girlfriend Louise Bryant (Diane Keaton) finally calls him on it. In 1920 he dies in Russia of typhus because due to a blockade by Western countries there is no medicine available. The Soviets were paranoid, but given the extent to which Western powers tried to smother the Soviet experiment in its crib, you can’t blame them.
This was an interesting crowd which the movie does not really do justice to, not only Reed and Bryant but Eugene O’Neill (played as a drunk by Jack Nicholson) and Emma Goldman (Academy Award for Maureen Stapleton). Garry Wills wrote about them in his portrait of Dorothy Day (another interesting person) in “Certain Trumpets: The Call of Leaders”. They were well-meaning people and, if we remember where their opponents were coming from and the tactics they used, well . . . one can’t say they were entirely in the wrong.
In high school my social studies teacher called the October Revolution the most significant event of the twentieth century. That was in 1972 and I still think it holds, even though Soviet-style communism dissolved before the century ended. Reed was correct to title his book about it “Ten Days That Shook the World”. Russia was a backward country in 1917 but the effects exploded across the globe.
It’s not remarked (at least not in conservative circles) that the Soviet “experiment” was attractive to left-leaning Westerners and thousands went to the U.S.S.R., attracted to a utopian dream. Few will now dispute their critique of capitalism. And in fact the Soviets did achieve some great things, at least in the early going. They provided literacy and health care to everyone, at least as far as was possible with their limited resources. They realized that the Russian Empire encompassed many nationalities and each one got its own “Socialist Republic”. It was harsh to force indigenous peoples away from their traditional ways of life and make them learn Russian, but it really was for their own good; left to their tribal ways and unable to speak the dominant language, they would face extinction. Even the Jews were given their own Republic (though if you see where Stalin decided to put it, you realize that this is what Hitler would have done with them, if Germany had been that big).
It is not stupid to point out where the Soviets went right. Even hateful regimes can have good ideas. The Confederate Constitution restricted their President to one term, that being 6 years. And having a line-item veto. Those are good ideas. Even the Nazis brought all classes of the country’s youth together in sleepaway camps (as noted by Shirer, a good idea) and made an attempt at national health insurance. (A British propaganda leaflet outlining what was to become their National Health Service was found marked up in Hitler’s bunker, an unnamed official writing, “This plan is better than ours.”)
Such sincere attempts at improving life for the common people were, as a rule, not present in the right-wing dictatorships we were supporting during the Cold War, where capitalists (with the support of the Catholic Church) were invested (literally) with keeping the population illiterate and powerless. These regimes too committed atrocities. We get more upset about those, because at least with the Soviets, atrocities were not done with our tax dollars.
As far as the utopian dream Reed and others were pursuing, wiser heads in Western democracies put into place policies which blunted the critique. The happiest and most productive democracies today have a system that is partly socialist. The proper proportion of socialism to capitalism is and will be a topic of fierce debate.
Your mystery church from yesterday’s post may have been this:
https://en.wikipedia.org/wiki/Mont-Saint-Michel
Thanks! Interesting.
FYI there is a documentary out there about this (possibly on TUBI?).
If I remember, Emma Goldman (Maureen Stapleton) was the most interesting person in the movie.
Now I’m trying to picture “Monty Python’s Reds”
Now that’s a pregnant statement waiting for a YouTube link…
When I worked at a women’s crisis center in 1980 (long story) we used to get the monthly newsletter of the Emma Goldman Clinic in Madison,
Wisconsin (I think). It was called “Emma Goldman’s Periodical Rag” which made me smile.
Correction: It was “Emma’s Periodical Rag” out of Iowa City, IA (like Madison a hotbed of feminism in those days).
Good grief.
Stick to porn.
For Soviet porn, look up the “Octobriana” cartoons. It will make you impotent for weeks.
Impotent for weeks?
maybe if you’re a Homo.
Frank
“extent to which Western powers tried to smother the Soviet experiment in its crib”
Completely justified attempt, but scratch a US “liberal” find a fellow traveler {or worse].
Soviet medicine was atrocious because Marxist theory did not value service industries — only manufacturing ones.
In the early/mid 19th Century, Marx may have had a point (maybe) but by the early/mid 20th Century, medicine had actually advanced into an industry that produced value — improved health and extended lives.
But Marxist theory remained….
The Soviets from the first were strongly pro-science because they realized only by technological advancement could they resist capitalist intrusion. But it became cult-like under Stalin and (as Garry Wills points out in “Certain Trumpets”) such leadership gets increasingly weird (for example, Stalin’s fixation with Lysenko’s theories).
But — some advantages of Soviet medicine:
— far cheaper because no malpractice suits, no need for providers to have insurance, and because everything was covered, no expensive bureaucracy devoted to finding reasons to deny claims
— not dominated by the race for ever-more-esoteric synthetic drugs or orthotics (the capitalist system discourages simpler modalities with natural ingredients because they’re very hard to patent)
— more doctors because no crushing loans needed to get through medical school
— better care for women because no fear of encroaching into the areas of contraception and abortion
So 1930’s USSR good, todays Roo-sha (HT B. Sanders) bad???
Google “Holodomor” sometime,
and for the Internets Limited among you,
“The Holodomor,[a] also known as the Great Ukrainian Famine,[b] was a man-made famine in Soviet Ukraine from 1932 to 1933 that killed millions of Ukrainians. The Holodomor was part of the wider Soviet famine of 1930–1933 which affected the major grain-producing areas of the Soviet Union.”
Frank “In America People Starve Government, in Russia Government starve People!!!!!!!”
“Reds” is in many ways the movie that made Warren Beatty’s career, because it proved he could do whatever he wanted and Hollywood would support him (at least for awhile).
As a movie, I can take it or leave it, but the thing I like is that in 1980 he still had some of the figures from that era available to talk to. So you get people like Roger Baldwin (founder of the ACLU) intermixed in the thing. It’s a history lesson of sorts.
Yes! The interviews with people who actually saw these things happening, validate the film.
“The Supreme Court declared those codes unconstitutional in Panama Refining Co. v. Ryan (1935).”
Who knew there were MAGA Justices back in 1935?
As much as I love that movie, and I do, I still think Life of Brian was their magnum opus.
(I have a soft spot for The Meaning of Life, but while some of the individual skits in that remain side-splittingly funny, it doesn’t have the holistic impact of their two greatest movies.)