Status
Available
Genres
Publication
New York : Harper & Row, c1988.
Description
"An Edward Burlingame book."
User reviews
LibraryThing member ecw0647
The best book I've read on freedom of speech. Klavern actually never finished the work. It was compiled by his son following the elder Klavern's untimely death. Klavern argues that the function of the Supreme Court is not to create a liberal and tolerant people, but rather to nurture and enrich a
It is interesting to note that more than 50% of all First Amendment cases since 1791 have been decided since 1959. Klavern argues the seminal case to be New York Times v Sullivan in which the court ruled that seditious libel; i.e. criticism of the government, cannot be made a crime in the United States thus effectively ruling unconstitutional the Sedition Act of 1798, not to mention the sedition laws used to imprison Abrams and his cohorts in 1919. Ironically, it was this latter case which provided Justice Holmes the opportunity to lay the groundwork for later free speech decisions in his famous defense of free speech in his dissent to Abrams v United States. In one of the more fascinating sections, Klavern discusses blasphemy and free speech. He observes that sacrilege, heresy and blasphemy are incompatible with the First Amendment, for as soon as the state decides what constitutes heresy it has essentially inserted itself in the religious debate and defined what is "correct" religion.
Epperson v Arkansas, a case overturning an anti-evolution statute in Arkansas in 1968, vividly made this point. The court based its decision not on whether evolution was correct or not. It simply stated that by denying that evolutionary theory be taught on the grounds that it was contrary to Biblical teaching, Arkansas was deciding what was false religious doctrine placing it squarely in opposition to the First Amendment. The state must not become the arbiter of falsity or truth in doctrinal matters. In fact government is forbidden by the First Amendment from preferring religion to non-religion, a position that most churches recognize as absolutely essential to the free
practice of religion.
I cannot do justice to the clarity and insights of this book. Its organization is such that it can be easily used as a reference in addition to simply good reading cover to cover. But have pencil and paper ready; you'll want to take notes.
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tradition which leads to that end. He rejects Hugo Black's absolutist view of free speech; i.e. that 100% of speech is protected, because the issue becomes moot if it can be shown that any form of speech can be regulated. The debate itself becomes critical. The principle must be constantly tested in order to. clarify and fortify the tradition. The court is limited in what it can do as it can only answer or discuss law in the context of the cases it hears. Thus the court expands law in the framework of real problems of society in a partnership with society which must bring the cases in the first place. It is interesting to note that more than 50% of all First Amendment cases since 1791 have been decided since 1959. Klavern argues the seminal case to be New York Times v Sullivan in which the court ruled that seditious libel; i.e. criticism of the government, cannot be made a crime in the United States thus effectively ruling unconstitutional the Sedition Act of 1798, not to mention the sedition laws used to imprison Abrams and his cohorts in 1919. Ironically, it was this latter case which provided Justice Holmes the opportunity to lay the groundwork for later free speech decisions in his famous defense of free speech in his dissent to Abrams v United States. In one of the more fascinating sections, Klavern discusses blasphemy and free speech. He observes that sacrilege, heresy and blasphemy are incompatible with the First Amendment, for as soon as the state decides what constitutes heresy it has essentially inserted itself in the religious debate and defined what is "correct" religion.
Epperson v Arkansas, a case overturning an anti-evolution statute in Arkansas in 1968, vividly made this point. The court based its decision not on whether evolution was correct or not. It simply stated that by denying that evolutionary theory be taught on the grounds that it was contrary to Biblical teaching, Arkansas was deciding what was false religious doctrine placing it squarely in opposition to the First Amendment. The state must not become the arbiter of falsity or truth in doctrinal matters. In fact government is forbidden by the First Amendment from preferring religion to non-religion, a position that most churches recognize as absolutely essential to the free
practice of religion.
I cannot do justice to the clarity and insights of this book. Its organization is such that it can be easily used as a reference in addition to simply good reading cover to cover. But have pencil and paper ready; you'll want to take notes.
Show Less