One of the greatest and most significant constitutional enigmas with which the Supreme Court has grappled during the past two decades has concerned the proper delineation of the first amendment's prohibition against the abridgment of "the freedom of speech." The range of problems confronted has extended from congressional investigations to state obscenity laws, from sit-in demonstrations to the provision of legal counsel by labor unions for their members. An all-encompassing and consistent theory of the first and fourteenth amendments has yet to be articulated by the Court, a situation which is hardly unexpected in view of the disparate claims asserted under the constitutional guarantee of freedom of speech and the closely related freedoms of expression, association, and assembly.
The attempt here will not be to chart the course which the Court has pursued through the muddied waters of the first amendment, but rather to detail the approach of one member of the present Court, John Marshall Harlan, to certain basic first and fourteenth amendment problems.
Douglas A. Poe,
The Legal Philosophy of John Marshall,
21 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol21/iss5/2