First Amendment Commons^™

The Legal Philosophy Of John Marshall, Douglas A. Poe

Vanderbilt Law Review

One of the greatest and most significant constitutional enigmas with which the Supreme Court has grappled during the past two decades has concerned the proper delineation of the first amendment's prohibition against the abridgment of "the freedom of speech." The range of problems confronted has extended from congressional investigations to state obscenity laws, from sit-in demonstrations to the provision of legal counsel by labor unions for their members. An all-encompassing and consistent theory of the first and fourteenth amendments has yet to be articulated by the Court, a situation which is hardly unexpected in view of the disparate claims asserted …

Religion And The Public Schools, P. Raymond Bartholomew

Vanderbilt Law Review

The first amendment to the United States Constitution contains a dual command with respect to governmental involvement with religion: government must "make no law respecting an establishment of religion or prohibiting the free exercise thereof." Although some have insisted that the first amendment requires a strict separation of church and state, the conclusion is inescapable that the two clauses were intended to operate together in harmony. It is apparent, therefore, that the conflicting policies of the "no establishment" clause and the "free exercise" clause must be balanced and reconciled. The United States Supreme Court has held that this balancing effort …

Obscene Literature, Law Review Staff

Vanderbilt Law Review

Obscene Literature

In 1959 the United States Supreme Court in Smith v. California'held a city and county ordinance unconstitutional for failure to require scienter on the part of a defendant. That ordinance, like many other ordinances and state statutes, subjected a bookseller to criminal prosecution for the sale of obscene literature regardless of whether he knew that it was obscene. The Court reasoned that such an ordinance would result in a bookseller's refusal to sell many publications which would not be legally suppressible but which the seller suspected of being obscene, perhaps without having read them. This self-censorship would constitute …

Charitable Tort Immunity Under The First Amendment, I. Stephen North

Vanderbilt Law Review

The doctrine of charitable tort immunity was conceived in England in 1861. The case of Holliday v. Leonard' held that to apply funds in trust to satisfy a tort claim would be to thwart the intent of the donor. In 1871, Holliday was overruled and since then charities in England have been liable for their torts. Apparently unaware that the Holliday case had been overruled, the courts of Massachusetts and Maryland' cited it as authority and established the immunity rule in America. From the beginning, the doctrine was not without its dissenters. In 1879, for example, Rhode Island rejected immunity. …

Chief Justice Waite And The "Twin Relic": Reynolds V. United States, C. Peter Magrath

Vanderbilt Law Review

In the landmark case of Reynolds v. United States, the United States Supreme Court held that a general law prohibiting polygamy did not abridge the religious freedom of members of the Mormon faith guaranteed by the first amendment. The author here explores the background of Chief Justice Waite's opinion in Reynolds v. United States: the tenets and development of the Mormon faith in the United States, the character of the Waite Court, and the sources and development of Chief Justice Waite's opinion in the case.

The First Amendment And The Judicial Process: A Reply To Mr. Frantz, Wallace Mendelson

Vanderbilt Law Review

Cut loose from its foundation in the distinction between discussion and incitement, the clear and present danger test lost its rational meaning and became a cloak for "vague but fervent transcendental-ism." In short, the activists destroyed it as an intelligible guide to decision-and then abandoned it about a dozen years ago. Meanwhile they have tried, and apparently discarded, one "new" verbalism after another. The latest is Mr. Justice Black's absolutist concentration on two untroubled words in the first amendment: "no law." This gambit--"no law means no law"--again begs all the difficulties simply by ignoring them. As Dean Griswold has suggested, …

Book Review, Chester J. Antieau

Vanderbilt Law Review

Any book that educates the American community to an under-standing of and an appreciation for the Bill of Rights serves a laudable end. And conceivably any author is entitled to define his own terms. However, Mr. Weinberger indicates his displeasure with the traditional meaning of the term, "Bill of Rights," as embracing the first ten amendments and sets out to include within his comparable term what he calls "Additional Amendments Dealing with Personal Liberty"' thus adding the 13th, 14th, 15th and 19th amendments, as well as "Provisions in the Original Constitution Dealing with Personal Liberty" which he specifies as the …

The Absolute Privilege Of The Executive In Defamation, Arno C. Becht

Vanderbilt Law Review

Should executive officers have an absolute privilege to commit defamation? This is Professor Becht's inquiry as he traces the evolution and application of this privilege from its origin in England through its development in American state and federal courts. After balancing the factors for and against absolute immunity, the writer reaches the conclusion that officials should be reduced to a qualified privilege in defamation.

The Free-Ness Of Free Speech, Robert A. Leflar

Vanderbilt Law Review

Freedom of speech under Anglo-American law has never been an absolute right, and numerous exercises of free speech (and of free press)have been subjected to inhibiting legal sanctions, both criminal and civil,almost from the beginning of our common law heritage. It is true that the Blackstonian rule prohibiting "previous restraints upon publications" purported, to protect absolutely the initial right to publish. But an absolute right to publish what one may thereafter be criminally punished or forced to pay civil damages for publishing is obviously illusory in its absoluteness.It is not an absolute right in any real sense of the term. …

Defamation, A Camouflage Of Psychic Interests: The Beginning Of A Behavioral Analysis, Walter Probert

Vanderbilt Law Review

Does the law of defamation need to be reformed? The author thinks so. Professor Probert rejects the doctrine of libel per se and questions the courts' understanding and use of the term "reputation." It is his belief that plaintiffs on an individual basis should have increased benefit of the knowledge accumulated by the various social sciences in proving the harm done by the alleged defamation, with more liberalization in the requirements of pleading and proof than is now generally countenanced by the courts.

Statement Of Fact Versus Statement Of Opinion -- A Spurious Dispute In Fair Comment, Herbert W. Titus

Vanderbilt Law Review

In attempting to solve problems in a variety of areas lawyers continuously make use of a distinction between statements of "fact" on the one hand and those of "opinion" on the other.' So versatile is this distinction that it has been used to solve problems raised in such diverse areas of the law as evidence and defamation. However, since the turn of the century the fact-opinion dichotomy has been severely criticized as a means of deciding what kinds of testimony should be allowed in a legal trial. Yet in the law of defamation, where this distinction has been extensively applied …

Constitutional Law -- 1961 Tennessee Survey (Ii), James C. Kirby, Jr.

Vanderbilt Law Review

Only three cases are assigned to this field for the abbreviated survey period and in one of these, the court avoided the constitutional question. In the other two cases the constitutional issues were not difficult and the results reached should cause neither surprise nor controversy among survey readers.

Equal Protection -- Racial Discrimination Home Rule--Self Executing Constitutional Provisions Miscellanous

Public Speech And Public Order In Britain And The United States, Richard E. Stewart

Vanderbilt Law Review

This paper will not attempt a general comparison of free speech in Britain and the United States. It concentrates on one aspect of the free speech problem. That aspect is speech that does or may lead to a breach of the peace by the audience.'

Recent Cases, Law Review Staff

Vanderbilt Law Review

CONSTITUTIONAL LAW--PRE-EMPTION--FEDERAL COMMUNICATIONS ACT OF 1934 DOES NOT INVALIDATE STATE WIRETAPPING STATUTE

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CONSTITUTIONAL LAW--SCHOOLS--UNCONSTITUTIONALITY OF STATUTE REQUIRING BIBLE READING IN PUBLIC SCHOOLS

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CRIMINAL LAW--BRIBERY--OFFER TO GIVE MONEY TO CONGRESSMAN'S POLITICAL PARTY

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CRIMINAL LAW--CONFESSIONS--REQUIREMENT OF CORROBORATION OF EXTRAJUDICIAL CONFESSION

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EVIDENCE--EXPERT TESTIMONY--INADMISSIBILITY OF EXPERT TESTIMONY THAT A NARCOTIC ADDICT IS UNWORTHY OF BELIEF

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FEDERAL RULES CIVIL PROCEDURE--DECLARATORY JUDGMENTS--RIGHT OF COUNTERCLAIMING DEFENDANT TO TRIAL BY JURY

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PROFESSION OF LAW--UNAUTHORIZED PRACTICE--CORPORATION MAY ENGAGE IN ACTIVITIES CONSTITUTING PRACTICE OF LAW IF SUCH ACTIVITIES ARE INCIDENTAL TO ITS PRINCIPAL BUSINESS

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STATE AND LOCAL TAXATION--INVALID ASSESSMENTS-JUDICIAL REVIEW AFTER FAILURE TO …

A Variety Of Freedoms, Stanley D. Rose

Vanderbilt Law Review

The Idea of Freedom: A Dialectical Examination of the Conceptions of Freedom By Mortimer J. Adler Institute of Philosophical Research. Garden City, New York: Doubleday and Co. 1958. Pp.xxvii, 689. $7.50 . . .

Each year a number of books appear which are devoted to the subject of freedom. This has been going on for at least two thousand years. But a reading of only a few of this multitude of volumes will show that one man's freedom is not necessarily another man's. It appears obvious that some order and classification ought to be introduced into our thinking about this …

Mr. Justice Jackson, Free Speech, And The Judicial Function, Walter F. Murphy

Vanderbilt Law Review

All free speech cases decided by the United States Supreme Court are hard cases; and, if they do not, according to the old saw, make bad law, they do make law which is both fragile and fascinating. Wrapped up inside the kernel of each of these cases are many of the most troublesome problems which confront a democratic government: the relation of majority rule to minority rights, the necessity of peace and order but the equally imperative necessity of open discussion, and, not least, the paradoxical role of an appointive judiciary in curbing, in the name of democracy and freedom, …

Book Note, Law Review Staff

Vanderbilt Law Review

Written primarily for the layman, this book reads much like a historical novel, detailing the lives of the two men whose personalities came into such violent conflict in a troubled time. Two-thirds of the book sets the stage for the trial which occupies the final third of the volume. The trial portion of the book consists mainly of quotes from the arguments of counsel, illustrating the rhetorical effects achieved by the attorneys in arguing a case that loomed large in the public eye. The authors--a husband and wife team, neither of whom appears to have a legal background--have successfully edited …

The Supreme Court And Obscenity, Philip M. Carden

Vanderbilt Law Review

The Supreme Court of the United States has now made binding law of its oft-repeated dictum that obscenity is beyond the pale of constitutionally protected free expression. After being spared-or avoiding-the necessity of ruling squarely on the constitutional status of obscene matter for 169 years, the Court addressed itself to virtually every aspect of the whole slippery problem in a single year. The Court disposed of seven obscene publication cases' in the twelvemonths through January, 1958. These included three reversals this term in memorandum decisions merely citing the major opinion of the series, which was handed down in the combined …

Voice Identification, Writing Exemplars And The Privilege Against Self-Incrimination, Russell J. Weintraub

Vanderbilt Law Review

The problems involved in defining the nature of the privilege against self-incrimination and in setting its limits have been much mooted in recent years. Though these problems have been brought into sharp focus by the present very urgent and certainly justified concern for our national security, they are problems which are inherent in the privilege itself. They have been with us for a long time.

One of these problems concerns the extent to which a person may refuse to participate in criminal proceedings brought against him. Doubtless not even the most liberal proponent of the privilege would claim that an …

Mr. Justice Frankfurter -- Law And Choice, Wallace Mendelson

Vanderbilt Law Review

In an opinion that seems destined to live as long as the ideals of democracy survive, Justices Holmes and Brandeis rejected their colleagues' narrow conception of free speech, yet concurred in the judgment affirming conviction. Though the accused had claimed protection under the appropriate constitutional provision, she had failed at the trial level to raise the "clear and present danger" issue. Raising it in the Supreme Court was futile, thought Holmes and Brandeis, because "Our power of review in this case is limited not only to the question whether a right guaranteed by the Federal Constitution was denied [in the …

The Utopian Pilgrimage Of Mr. Justice Murphy, John P. Roche

Vanderbilt Law Review

On July 19, 1949, Frank Murphy, Associate Justice of the Supreme Court of the United States died in Detroit. The liberal press mourned the passing of a mighty warrior for civil liberty. Other journals observed the protocol of the occasion by politely deploring his death, the University of Michigan Law School prepared a memorial issue of the Michigan Law Review' in honor of its distinguished alumnus, a few encomiums appeared in the law journals, then silence set in. A silence which has been broken only by occasional slighting references to Murphy's talents, and by a word-of-mouth tradition in law school …

Judge Hand's Views On The Free Speech Problem, Robert S. Lancaster

Vanderbilt Law Review

Judge Learned Hand has been for many years a lawyer's lawyer. His opinions are liberally sprinkled through the case books; commentaries on legal matters cite his opinions with increasing respect and admiration; but to many people he is the judge who upheld the conviction of the eleven communists in New York on a question involving the limits of free speech. Scholars of parts and even some lawyers do not know that he anticipated the Supreme Court's "clear and present danger" test by two years, or that his contribution to the law of free speech is by no means confined to …

State And Local Taxation -- 1956 Tennessee Survey, Paul J. Hartman

Vanderbilt Law Review

As indicative of the growing importance to the bench and bar of state and local taxation, the Tennessee Supreme Court was called upon to decide three significant tax cases during the period covered by this survey article. During this period, objecting taxpayers spear-headed vigorous assaults against various privilege taxes on commerce and due process clause grounds.

Book Reviews, Robert J. Harris, Charles B. Nutting (Reviewer), Daniel Walker (Reviewer)

Vanderbilt Law Review

Book Reviews

American Constitutional Law By Bernard Schwartz Cambridge:Cambridge University Press, 1955. Pp. xiv, 364. $5.00

reviewer: Robert J. Harris

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The Development of Academic Freedom in the United States By Richard Hofstadter and Walter P. Metzger New York: Columbia University Press, 1955. Pp. xvi, 527. $5.50

Academic Freedom in Our Time By Robert M. MacIver New York:Columbia University Press, 1955. Pp. xiv, 329. $4.00

reviewer: Charles B. Nutting

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Military Justice in the United States

By Robinson 0. Everett

Harrisburg: Military Service Publishing Company, 1956. Pp. 338

reviewer: Daniel Walker

Public Employees And The Right To Engage In Political Activity, Dalmas H. Nelson

Vanderbilt Law Review

Although the right to freedom of expression has become more narrowly circumscribed for everyone in recent years, the abridgments of this right that the courts have held may constitutionally be imposed on public employees are exceptionally extensive. This has been justified basically in terms of the doctrines that public employment is a privilege which the government may extend or withdraw at will and upon such terms as it chooses, and that denial of public employment does not constitute punishment. The upshot is that in this area the government may act with almost complete arbitrariness, even when basic rights such as …

Book Reviews, Robert J. Harris (Reviewer), E. M. Morgan (Reviewer)

Vanderbilt Law Review

Book Reviews

The Fifth Amendment Today By Erwin N. Griswold Cambridge)Mass.: Harvard University Press. Pp. vi, 82. $0.50

reviewer: Robert J. Harris

Handbook of the Law of Evidence By Charles T, McCormick St.Paul: West Publishing Co., 1954, pp. xxviii, 774.

reviewer: E. M. Morgan

Book Reviews, Reginald C. Harmon (Reviewer), A. B. Butts (Reviewer), Rollin M. Perkins (Reviewer), Stanley D. Rose (Reviewer), Charles H. Livengood, Jr. (Reviewer), Keith W. Blinn (Reviewer)

Vanderbilt Law Review

Military Justice under the Uniform Code

By James Snedeker

Boston: Little, Brown and Company, 1953. $15.00.

reviewer: Reginald C. Harmon

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Conscription of Conscience

By Mulford Q. Sibley and Philip E. Jacob

Ithaca: Cornell University Press, 1952. Pp. x, 580. $6.50.

reviewer: A. B. Butts

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Theft, Law and Society

By Jerome Hall

Indianapolis: Bobbs-Merrill Co., Inc. Second Edition, 1952. Pp. xxiv, 398. $10.00.

reviewer: Rollin M. Perkins

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Freedom of the Press in England 1476-1776

By Fredrick S. Siebert

Urbana: University of Illinois Press, 1952. Pp. xiv, 411. $7.50.

reviewer: Stanley D. Rose

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Wage-Hour Law: Coverage

By Heiman …

The Clear And Present Danger Test--A Reply To Mr. Meiklejohn, Wallace Mendelson

Vanderbilt Law Review

As educator and philosopher Alexander Meiklejohn has won a lion's share of the honors of his profession. Few have seen so clearly, or done more to enrich, the meaning of America. When in a provoking little volume' that appeared in 1948, Mr. Meiklejohn examined the meaning of democracy and free speech and found that Mr. Justice Holmes' clear and present danger test was incompatible with both, he obviously struck fire. His theme was that when men govern themselves it is they and not government who must judge as to the wisdom, fairness and danger of ideas. This means that unwise, …

Book Reviews, Edmund M. Morgan, Albert Williams (Reviewer), J. Warren Madden (Reviewer), Melvin M. Belli (Reviewer), George H. Tyne (Reviewer), William J. Bowe (Reviewer)

Vanderbilt Law Review

Book Reviews

The Hearsay Rule

By R. W. Baker

London: Sir Isaac Pitman & Sons,Ltd., 1950. Pp. xxi, 180

reviewer: Edmund M. Morgan

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Self-Incrimination: What Can an Accused Person be Compelled to Do?

By Fred E. Inbau

Springfield, Illinois: Charles C. Thomas, 1950.Pp. x, 91. $2.50

reviewer: Albert Williams

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Administrative Law

By Kenneth C. Davis

St. Paul: West Pub. Co.,1951. Pp. xvi, 1024. $8.00

Administrative Law: A Test

By Reginald Parker

Indianapolis: The Bobbs-Merrill Co., 1952. Pp. x, 344. $5.50

Administrative Agencies and the Courts

By Frank E. Cooper

Ann Arbor; University of Michigan Law School, 1951. Pp. …

Dennis V. United States -- Precedent, Principle Or Perversion?, Chester J. Antieau

Vanderbilt Law Review

Every socio-political group must determine when its survival necessitates proscription of subversive activity. Although some scholars feel no limitation upon speech is therefor justified, most students of the problem are agreed that when national security is at stake somewhere there must be imposed some limitations upon freedom of expression. The Blackstonian notion that, although there could be no prior restraints, anything could be punished after utterance is unworthy. Prior restraints of some kind, such as a prohibition upon publishing in time of war the sailing dates of troopships, are permissible under any rational analysis while, on the other hand, if …