Case Law, The Constitution, and "Suicide Pacts"

Quite a few years ago, as online legal research was starting to displace research from printed case reporters, I heard a judge complain about the downside of online research. While the ability to bring up a case based upon a keyword search is a powerful tool, the judge found that some attorneys didn't seem to understand the difference between dictum and holding, and sometimes between the majority and dissenting opinion. They would search until they found a passage that said what they wanted to hear, and then quote it to the court without providing the context. Sometimes these lawyers would be surprised when the judge told them that they were misrepresenting the case they were quoting.

So I guess there should be no suprise when individuals without legal training make a similar error. Perhaps they aren't even reading the case law - perhaps they are skimming through a quote site or a weblog and see a legal quote that "sounds cool", so they present it as if it is gospel. Yet sometimes, if they took the time to find the context of the quote, they might hesitate before relying upon it as an authority.

Today, Josh Marshall expresses his defense of many of the Bush Administration's actions after 9-11 by expressing,

Like Andrew [Sullivan] (at least I suspect this is so, though he can speak for himself), I'm a good deal less doctrinaire on civil liberties issues than, I suspect, many of the readers of this site. As Justice Jackson put it, the constitution is not a suicide pact. And a lot of the things that were done in the immediate aftermath of 9/11 were, I think, justifiable in theory, if not always in execution.

Now, it is true that Justice Powell, dissenting in the case of Terminiello v Chicago stated,

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

But that's somewhat different from the statement attributed by Marshall. While Powell is arguing for a limitation on First Amendment freedoms, the implications of his statement are not so one-sided. It could at least as easily be asserted that, "if the Court does not temper its doctrinaire logic with a little practical wisdom" a disregard for certain Constitutional protections could "convert the constitutional Bill of Rights into a suicide pact."

But it is also important to consider the subject of Powell's statement, which was an ordinance in Chicago which regulated speech. The Supreme Court noted the effect of the ordinance, as applied by the Chicago courts:

The vitality of civil and political institutions in our society depends on free discussion. ... The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.

And Jackson was less concerned with the Supreme Court's ruling in general than he was with the specific case before the Court - Rev. Terminiello's racist, anti-Semitic, and anti-communist expressions:

The Court reverses this conviction by reiterating generalized approbations of freedom of speech with which, in the abstract, no one will disagree. Doubts as to their applicability are lulled by avoidance of more than passing reference to the circumstances of Terminiello's speech and judging it as if he had spoken to persons as dispassionate as empty benches, or like a modern Demosthenes practicing his Philippics on a lonely seashore.

But the local court that tried Terminiello was not indulging in theory. It was dealing with a riot and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two.

In arguing for affirming the criminalization of Terminiello's speech, he relies heavily upon content he quotes from that speech, and the fact that a huge crowd had argued in the street to protest Terminiello. He quotes crowd reactions to suggest that the speech was more than an expression of thoughts, but inspired strong reactions among members of the crowd. He advances the position that "cities and states sould be sustained in the power to keep their streets from becoming the battleground for [] hostile ideologies to the destruction and detriment of public order", and should be able to criminalize public speech which gives rise to mob violence.

The majority focused not on the content of the speech, but upon the law which was applied to that speech. It remains possible that the majority in Terminiello might have reached a different conclusion had the Chicago ordinance not been so wildly overbroad, and had they instead viewed it as a reasonable "time, place and manner" restriction. (And such a different decision could have had an interesting ripple effect through subsequent First Amendment jurisprudence, and probably not in a direction Marshall would deem positive.)