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9 “What Does the First Amendment Mean?” 1948–1954 263 I n january of 1945, the House Un-American Activities Committee became a permanent standing committee in Congress. A year later, Attorney General Tom Clark announced the infiltration of a “sinister and deep-seated plot on the part of Communists, ideologists, and small groups of radicals” to overthrow the U.S. government by force. It was in the midst of this increasingly tense postwar atmosphere that Meiklejohn drafted a short article on the importance of free speech in the twentieth century. Writing under the title “Free Speech and Justice Holmes,” he examined the extent to which “revolutionary” speech was protected under the First Amendment. In particular, he challenged the well-known “clear and present danger” doctrine that Justice Oliver Wendell Holmes, Jr., had outlined in the famous case of Schenck v. United States in 1919. Unlike Holmes, who had claimed that the government could regulate speech if it posed a clear and present danger to public safety, Meiklejohn insisted that the First Amendment was absolute in its protection of the freedom of speech. In his words, “discussion of the public welfare can under no circumstances be abridged, however ‘clear’ and however ‘present’ the ‘danger ’ it may appear to present to the safety of the nation.”1 Certainly, it was a provocative thesis. Given the agitated state of postwar political culture, Meiklejohn was not even sure he should publish it. “You told me you were not certain that you should publish your manuscript,” wrote Philip Glick of the Yale Law School. “Of course you should publish it! You are offering the most penetrating and illuminating criticism of the ‘clear and pre- sent danger’ principle that has been suggested anywhere.”2 Yet, in April of 1946, when Meiklejohn sent his work-in-progress to Harper & Brothers in New York, editor Ordway Tead suggested he wait. “I hardly know what to advise about your manuscript entitled ‘Free Speech and Justice Holmes,’” Tead wrote. “Isn’t it a project you can defer . . . until 1947, when I am sure you can get more favorable consideration?”3 Given the mounting fear of Communist subversion in the mid-1940s, Tead’s recommendation was not surprising, but the delay only heightened the impact of Meiklejohn’s ideas. In October of 1947, he revisited “Free Speech and Justice Holmes,” giving a series of three invited lectures on that subject at the University of Chicago. He later delivered the same set of lectures, in full or in part, at Dartmouth, St. John’s, and Yale.4 In December of 1947, Tead finally agreed to publish Meiklejohn’s lectures as a book under the title Free Speech and Its Relation to Self-Government.5 The purpose of this book—which eventually became the most influential of all Meiklejohn’s writings—was, quite simply, to encourage all Americans to study the Constitution, especially the First Amendment. “Every loyal citizen of the nation must join with his fellows in the attempt to interpret , in principle and in action, that provision of the Constitution which is . . . regarded as its most vital assertion, its most significant contribution to political wisdom,” he asserted in his book’s foreword. “What do ‘We, the People of the United States,’ mean when we provide for the freedom of belief and of the expression of belief?”6 With this question, Meiklejohn brought the debate on the meaning of free speech into sharp and penetrating focus. What were the limits of public debate in the United States? What were the constitutional standards for legitimate political expression in a self-governing democracy? Over the next decade and a half, Meiklejohn’s “absolutist” interpretation of the First Amendment led scholars, judges, and lay people alike toward a new understanding of civil liberties and a more sophisticated awareness of the legitimacy of revolutionary speech in a democratic society. The reference to loyal citizens in Meiklejohn’s foreword was no accident . In the late 1940s, the difference between loyal and subversive citizens , between patriotic and communistic organizations, between American and un-American activities, constituted a pervasive social concern. The Truman Loyalty Program, launched by executive order in 1947, made distinctions between loyal and disloyal government employees a matter of explicit federal policy. Given the contentious state of cold war geopolitics, with the United States pitted against the Soviet Union in an ideological battle to the death, Meiklejohn felt an urgent need to establish b e r k e l e y, 1 9 4 8...

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