"Justice Black's uncompromising zeal for freedom of speech, press, religion and association might not have seemed so urgently necessary in previous periods of our history. In Lincoln's day, men naturally felt more excited about food, employment and social welfare. But today, when democracy stands here and on every continent presenting its case at the bar of destiny our supreme need is to share Hugo Black's devotion to the First Amendment and his intrepid defense of the people's rights.
"The American covenant was solemnly inscribed on the hearts of our ancestors and on the doorposts of our political history. It is a covenant of freedom, justice and human dignity. Through keeping it in a quarter-century of judicial decisions he has proved himself a great jurist. Through keeping it in all the transactions of our public life, we can prove ourselves a great and enlightened nation."
After this most impressive introduction, Professor Cahn recalled a lecture that Justice Black had delivered two years before in which he had stated, "It is my belief that there are 'absolutes' in our Bill of Rights, and that they were put there on purpose by men who knew what words meant and meant their prohibitions to be 'absolutes.'"
Cahn began the interview by asking the Supreme Court Justice to explain what he had meant by this, to which Justice Black replied, "I believe the words do mean what they say. I have no reason to challenge the intelligence, integrity or honesty of the men who wrote the First Amendment.* Among those I call the great men of the world are Thomas Jefferson, James Madison and various others who participated in formulating the ideas behind the First Amendment for this country and in writing it.
[*The First Amendment states: "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."]
"...The beginning of the First Amendment is that 'Congress shall make no law.' I understand that it is rather old-fashioned and shows a slight naivete to say that 'no law' means no law. It is one of the most amazing things about the ingeniousness of the times that strong arguments are made, which almost convince me, that it is very foolish of me to think that 'no law' means no law. But what it says is 'Congress shall make no law respecting an establishment of religion,' and so on.
"I have to be honest about it. I confess not only that I think the Amendment means what it says but also that I may be slightly influenced by the fact that I do not think that Congress should make any law with respect to these subjects.
"Then we move on, and it says, 'or prohibiting the free exercise thereof.' I have not always exercised myself in regard to religion as much as I should, or perhaps as much as all of you have. Nevertheless, I want to be able to do it when I want to do it. I do not want anybody who is my servant, who is my agent, elected by me and others like me, to tell me that I can or cannot do it.
"...Then I move on to the words 'abridging the freedom of speech or of the press.' It says Congress shall make no law doing that. What it means—according to a current philosophy that I do not share—is that Congress shall be able to make just such a law unless we judges object too strongly. One of the statements of that philosophy is that if it shocks us too much, then they cannot do it. But when I get down to the really basic reason why I believe that 'no law' means no law, I presume it could come to this, that I took an obligation to support and defend the Constitution as I understand it. And being a rather backward country fellow, I understand it to mean what the words say. Gesticulations apart, I know of no way in the world to communicate ideas except by words. And if I were to talk at great length on the subject, I would still be saying—although I understand that some people say that I just say it and do not believe it—that I believe when our founding fathers, with their wisdom and patriotism, wrote this Amendment, they knew what they were talking about. They knew what history was behind them and they wanted to ordain in this country that Congress, elected by the people, should not tell the people what religion they should have or what they should believe or say or publish, and that is about it. It says 'no law,' and that is what I believe it means."
Professor Cahn then mentioned that some of Justice Black's colleagues believe it is better to interpret the Bill of Rights so as to permit Congress to take what it considers "reasonable steps" to preserve the security of the nation even at some sacrifice of freedom of speech and press and association, and he asked the Judge's view of this.
Justice Black replied: "I fully agree with them that the country should protect itself. It should do whatever is necessary to preserve itself. But the question is: preserve what? And how?
"...I want it to be preserved as the kind of government it was intended to be. I would not desire to live in any other place where my thoughts were under the suspicion of government and where my words could be censored by government, and where worship, whatever it was or wasn't, had to be determined by an officer of the government. That is not the kind of government I want preserved.
"I agree with those who wrote our Constitution, that too much power in the hands of officials is a dangerous thing. What was government created for except to serve the people? Why was a Constitution written for the first time in this country except to limit the power of government and those who were selected to exercise it at the moment?
"My answer to the statement that this government should preserve itself is yes. The method I would adopt is different, however, from that of some other people. I think it can be preserved only by leaving people with the utmost freedom to think and to hope and to talk and to dream if they want to dream. I do not think this government must look to force, stifling the minds and aspirations of the people. Yes, I believe in self-preservation, but I would preserve it as the founders said, by leaving people free. I think here, as in another time, it cannot live half slave and half free."
In response to a question about allowing full and sometimes sensational newspaper reports about a crime and the possible effect this might have upon a fair trial, Justice Black replied, "I do not myself think that it is necessary to stifle the press in order to reach fair verdicts.... I want both fair trials and freedom of the press. I grant that you cannot get everything you want perfectly, and you never will. But you won't do any good in this country, which aspires to freedom, by saying just give the courts a little more power, just a little more power to suppress the people and the press, and things will be all right."
Professor Cahn asked, "Is there any kind of obscene material, whether defined as hard-core pornography or otherwise, the distribution and sale of which can be constitutionally restricted in any manner whatever, in your opinion?"
To which Justice Black replied, "My view is, without deviation, without exception, without any ifs, buts or whereases, that freedom of speech means that you shall not do something to people either for the views they have or the views they express or the words they speak or write.
"...It is the law [because the courts have held that it is the law] that there can be an arrest made for obscenity. It was the law in Rome that they could arrest people for obscenity after Augustus became Caesar. Tacitus says that then it became obscene to criticize the Emperor. It is not any trouble to establish a classification so that whatever it is that you do not want is within that classification. So far as I am concerned, I do not believe there is any halfway ground for protecting freedom of speech and press. If you say it is half free, you can rest assured that it will not remain as much as half free. Madison explained that in his great Remonstrance when he said in effect, 'If you make laws to force people to speak the words of Christianity, it won't be long until the same power will narrow the sole religion to the most powerful sect in it.' I realize that there are dangers in freedom of speech, but I do not believe there are any halfway marks."
In conclusion Judge Black said, "The Bill of Rights to me constitutes the difference between this country and many others. I will not attempt to say most others or nearly all others or all others. But I will say it constitutes the difference to me between a free country and a country that is not free.
"...[The Bill of Rights] is intended to see that a man cannot be jerked by the back of the neck by any government official; he cannot have his home invaded; he cannot be picked up legally and carried away because his views are not satisfactory to the majority, even if they are terrible views, however bad they may be. Our system of justice is based on the assumption that men can best work out their own opinions, and that they [the opinions] are not under the control of government. Of course, this is particularly true in the field of religion, because a man's religion is between himself and his Creator, not between himself and his government.
"I am not going to say any more except this: I was asked a question about preserving this country. I confess I am a complete chauvinist. I think it is the greatest country in the world. I think it is the greatest because it has a Bill of Rights. I think it could be the worst if it did not have one. It does not take a nation long to degenerate. We saw, only a short time ago, a neighboring country where people were walking the streets in reasonable peace one day and within a month we saw them marched to the back of a wall to meet a firing squad without a trial.
"I am a chauvinist because this country offers the greatest opportunities of any country in the world to people of every kind, every race, of every origin, of every religion—without regard to wealth, without regard to poverty. It offers an opportunity to the child born today to be reared among his people by his people, to worship his God, whatever his God may be, or to refuse to worship anybody's God if that is his wish. It is a free country; it will remain free only, however, if we recognize that the boundaries of freedom are not so flexible; they are not made of mush. They say 'Thou shalt not,' and I think that is what they mean.
"...I am for the First Amendment from the first word to the last. I believe it means what it says, and it says to me, 'Government shall keep its hands off religion. Government shall not attempt to control the ideas a man has. Government shall not abridge freedom of the press or speech. It shall let anybody talk in this country.' I have never been shaken in the faith that American people are the kind of people and have the kind of loyalty to their government that we need not fear the talk of Communists or of anybody else. Let them talk! In the American way, we will answer them."
As Time observed a few weeks ago, in reporting on three cases in which the Supreme Court overturned or amended its own previous decisions: "Ideally, the flow of U.S. law should run straight and true. In fact, it has countless twists and turns [and] often reverses its course...." It is our feeling that in its decisions of the last few years, under Chief Justice Earl Warren, the Supreme Court has moved the course of U.S. law closer to the original intent of our Constitution than at any previous time in history. While approving the High Court's intent in putting an end to segregation in 1954, Life Magazine, nonetheless, expressed the opinion in an editorial that the decision was based more upon sociology than law. Life was not the only one to voice this view, but—in truth—just the opposite was the case. In reversing an earlier Supreme Court decision that had upheld the principle of "separate but equal," the present Court re-established the guarantees and protections of the Constitution for a number of our citizens who for too long had been forced to live without them.