Note 238 — AMENDMENT 1 (continued 2)

Ibid, 259-263 passim. Justice Douglas, dissenting, urged the "absolute" character of freedom of speech and deplored recent cases in which, he asserted, the Court "has engrafted the right of regulation onto the First Amendment by placing in the hands of the legislative branch the right to regulate 'within reasonable length' the right of free speech. This to me is an ominous and alarming trend." Ibid. 285. Justices Black, Reed and Jackson also dissented. Justice Jackson's dissenting opinion is characteristically paradoxical: "An Illinois Act, construed by its Supreme Court to be a 'group libel' statute, has been used to punish criminally the author and distributor of an obnoxious leaflet attacking the Negro race. He answers that, as applied, the Act denies a liberty secured to him by the Due Process Clause of the Fourteenth Amendment. What is the liberty which that clause underwrites? The spectrum of views expressed by my seniors shows that disagreement as to the scope and effect of this Amendment underlies this, as it has many another, division of the Court. All agree that the Fourteenth amendment does confine the power of the State to make printed words criminal. Whence we are to derive metes and bounds of the state power is a subject to the confusion of which, I regret to say, I have contributed—comforted in the acknowledgment, however, by recalling that this Amendment is so enigmatic and abstruse that judges more experienced than I have had to reverse themselves as to its effect on state power. The thesis now tendered in dissent is that the 'liberty' which the Due Process Clause of the Fourteenth Amendment protects against denial by the States is the literal and identical 'freedom of speech or of the press' which the First Amendment forbids only Congress to abridge. The history of criminal libel in America convinces me that the Fourteenth Amendment did not 'incorporate' the First, that the powers of Congress and of the States over this subject are not of the same dimensions, and that because Congress probably could not enact this law it does not follow that the States may not." Ibid. 287-288. Proceeding from this position, Justice Jackson is able, none the less, to dissent from the Court's judgment. Cf. Chief Justice Stone's position in United States v. Carolene Products Co., 304 U.S. 144, at 152-53, note 4 (1938).