“On That Premise This Land Was Created, and on That Premise It Has Grown to Greatness”
Barenblatt v. U.S. (1959) upheld the House Un-American Activities Committee’s demand that Lloyd Barenblatt, a professor, testify about his alleged Communist activities while a graduate student. Justice Hugo Black, joined by Chief Justice Earl Warren and Justice William O. Douglas, dissented; I’ve long found the opinion to be particularly thoughtful and forceful, and since I was reminded of it while preparing for my First Amendment Law class next week, I decided to pass along some excerpts:
[A.] I do not agree that laws directly abridging First Amendment freedoms can be justified by a congressional or judicial balancing process…. But even assuming what I cannot assume, that some balancing is proper in this case, I feel that the Court after stating the test ignores it completely. At most it balances the right of the Government to preserve itself, against Barenblatt’s right to refrain from revealing Communist affiliations.
Such a balance, however, mistakes the factors to be weighed. In the first place, it completely leaves out the real interest in Barenblatt’s silence, the interest of the people as a whole in being able to join organizations, advocate causes and make political “mistakes” without later being subjected to governmental penalties for having dared to think for themselves.
It is this right, the right to err politically, which keeps us strong as a Nation. For no number of laws against communism can have as much effect as the personal conviction which comes from having heard its arguments and rejected them, or from having once accepted its tenets and later recognized their worthlessness.
Instead, the obloquy which results from investigations such as this not only stifles “mistakes” but prevents all but the most courageous from hazarding any views which might at some later time become disfavored. This result, whose importance cannot be overestimated, is doubly crucial when it affects the universities, on which we must largely rely for the experimentation and development of new ideas essential to our country’s welfare. It is these interests of society, rather than Barenblatt’s own right to silence, which I think the Court should put on the balance against the demands of the Government, if any balancing process is to be tolerated….
[B.] Moreover, I cannot agree with
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