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Justice Jackson's Dissent

Reader comment on item: Can Hezbollah and Hamas Be Democratic?

Submitted by Daniel W. Weil (United States), Mar 22, 2005 at 18:08

The statements by President Bush and his top foreign policy advisers simply affirms my contention that these folk are dangerously ignorant in the fields of world history, political science and international relations - the fact that some of their initiatives may be appealing is not sufficient to offset the lasting damage they are inflicting on America, now and into the future. I would have two requests to remedy this situation: first, they be required to spend 12 hours a day for three days at the ancient history section of the Louvre; it provides the perspective needed. And then, they read, and discuss, Thucydides Pelopponesian War. Or else, we can next expect our president to say how the Klu Klux Klan can be transformed into a political body worthy of participating in American political affairs.

But my main reason for writing is to comment on Justice Jackson's dissent in the Terminello case to which you refer in your article. I had not read his opinion previously - and have always admired his works - so was shocked to read such a misguided and intellectually dishonest diatribe.

Justice Jackson had just returned from being Chief Prosecutor at the Nuremburg Trials and apparently was determined to expound at length on his attitudes regarding maintenance of public order and the place of dissent in America. So he took this case and made it into something it was not. His opinion in fact has almost nothing to do with the legal issues decided by the Court.

A controversial speaker spoke at a rally in a building - and the quotations from the speech in Jackson's opinion are actually fairly mild - and a mob scene developed outside from antagonists. Still, the Chicago police did an outstanding job of getting him into the auditorium and protecting him and the audience from the unruly mob outside. At no time did they tell the speaker to stop speaking but rather made it possible to speak.

Later, he was charged with disorderly conduct, had a jury trial and was convicted. Part of the jury instruction was to find him guilty if his "words stirs the public to anger, invites dispute or creates a disturbance." No one on the Court, incidentally, argued that the instructions were consitutionally correct.

For the record, which makes the case all the more delicious, the convicted defendant was fined $100. As a Chicagoan, it makes me feel good that all parts of our system basically worked as they should - regardless of how one feels about the merits of the case.

Illinois courts upheld the conviction. The issue upon which the United States Supreme Court reversed (J.Douglas) was that the instructions were overly broad and impinged on First Amendment rights of free speech so the case should be remanded for a new trial. Three justices dissented on basically a simple legal proposition - with which I agree - being that no objection to the offending language was raised at the trial level, before the Illinois Appellate or Supreme Courts and not even before the US Supreme Court. The legal issue raised at every level was the constitutionality of the ordinance, not whether the conduct was sufficient to warrant a conviction and not whether the instructions were proper.

As two justices wrote in exasperation, the issue on the instruction came about by Justice Douglas combing the record and finding the error himself. Accordingly, counsel on neither side ever argued the matter. As noted, the defendant was intelligent and had been well represented at all stages by competent counsel so the issue was not properly before the Court. Only when life or liberty or some compelling error is present should the Court on its own decide a case on an issue not raised. I happen to fully agree with the dissenters.

To be clear, the Court's decision was very narrow: the instruction given was overly broad in declaring what kind of speech would support a conviction. There was never any discussion on the merits.

Justice Jackson's attempt to convert the case into an issue of authority of local officials to keep the streets safe, preserve order, prevent riots and punish offenders has Alice in Wonderland characteristics. The jurist is simply ventilating, wanting to get his thoughts in writing and apparently afraid a proper vehicle to do so was not forthcoming.

In a career marked by outstanding public contributions and intellectual rigor, this is a sad example of self-indulgence and serves as a warning to those who take heed that the ends don't justify the means: something true believers of all sorts sadly forget.
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