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William O. Douglas

William Douglas, Associate Justice of the Supreme Court of the United States, talks with Wallace about freedom of expression and the freedom to exchange ideas. In Douglas's book, The Right of the People, he wrote, "In recent years, as we have denounced the loss of liberties abroad we have witnessed its decline here in America."

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Guest: William O. Douglas

WALLACE: This is William Douglas, Associate Justice of the Supreme Court of the United States. Not long ago Justice Douglas wrote; "In recent years, as we have denounced the loss of liberty abroad, we have witnessed its decline here in America." We'll find out why in a moment.


WALLACE: Good evening, I'm Mike Wallace. America prides itself on its freedoms, chief among them freedom of expression, freedom to exchange ideas. These freedoms have the blessings of our civic leaders, our newspapers, our politicians; but in practice are we always granted those freedoms, and do we always use the freedom we have? Our guest, Justice William Douglas of the United States' Supreme Court.

Justice Douglas, in your new book The Right of the People you write this: you say, "In recent years, as we have denounced the loss of liberties abroad we have witnessed its decline here in America." Where have our liberties declined recently here in the United States?

DOUGLAS: Well, after World War II we had a real problem on our hands of the subversive operating for the communist orbit of influence in the world, and the necessary problem of ferreting them out and getting them out of important positions in government. But instead of going about it like the British did, in a very discreet, rather silent behind-the-scenes manner, we started having public trials of people, and the whole question not only of what they had done but their beliefs and attitudes began to be looked into; and so people became more and more frightened and people, to get a job or to keep a job, wanted to be safe. So I think there has been a general contraction of the feeling of ability to speak freely and a general leavening... a general lowering of the standards of free expression that we've enjoyed in earlier days.

WALLACE: Well, now, is it understandable that in our craving for security, if you will, in a cold war, that perhaps... it is understandable that the American people might be willing, in a sense, to give up a few of their freedoms because of a fear that they are going to lose their security?

DOUGLAS: I don't think there is any such thing as a conscious choice or any such imminence of that kind of a crisis developing, but I think that the trend to conformity has been great in America due to a number of reasons since World War II, and the hunt for the subversive, I think, has been one of them. I was sitting on a plane just the other day riding into Washington and a lady spoke up to me, a stranger, and said that she had found a subversive in her child's public school room. And I asked her what her definition of a subversive was, and she said her definition of a subversive was a person who was a socialist; and she was convinced that the man who taught art in this public school was a socialist and therefore a subversive. It's that kind of non-discriminating analysis that has been more and more common, I think, in American public life.

WALLACE: Well, should the freedom of speech, according to your understanding, include the freedom to challenge the very basis of an existing government?

DOUGLAS: Well, in the Jeffersonian sense of freedom of expression, there should be no horizons on debate, on talk. People should be tested not by their loyalty, not by belief, not by utterances, but by their actions. Jefferson would draw the line between speech on the one side and actions on the other, and in the field of speech Tom Jefferson, I think, would put no limits on it. There would be no horizons. And the way to combat, error according to one of his classical statements, was with reason: to fight one idea with another idea, to fight one doctrine with another doctrine, to fight one belief with another belief, but never to make any idea taboo and put it beyond discussion, to suppress it, because once you start suppressing ideas then you get developing in a society a very unhealthy influence.

WALLACE: Most people who expressed fears that America was losing its liberties seemed most fearful four or five years ago, as you have pointed out, when, as they claimed, our hysteria over communism put our respect for civil liberties somewhat into the shadows. But we would seem to have recovered somewhat from that period of three, four, five years ago. Do you think that our regard for liberty has been declining even since then, Justice Douglas?

DOUGLAS: I don't know that it's... has been declining, but I do have the feeling that we've become a little more insensitive to inroads and that the inclination to look for a teacher who is so called 'safe,' a minister who is 'safe,' a Congressman who is 'safe' ...the leveling down process, I think, has continued.

WALLACE: When you say 'safe' what does that word mean?

DOUGLAS: I mean, ...who doesn't have unorthodox ideas, who conforms to the pattern of general thought and thinking, who is not a contentious character, whose ideas are readily acceptable, who is not apt to draw the wrath of people who disagree in the field of ideas.

WALLACE: And I imagine what you are saying, in a sense, is that this becomes stultifying to the American culture?

DOUGLAS: Great influences in the American life that is... have been invigorating, have been the dissenters, the unorthodox, people who challenge an existing institution or a way of life, or a way of doing things and makes people think about what they are doing, and the values implicit in what they are doing, and to... the constant re-examination is a healthy thing.

WALLACE: One of your major concerns in this area, in the area of freedom of expression, of course, is freedom of speech, which is guaranteed under the First Amendment of the Constitution. Now, in your book The Right of the People, you say that even this freedom is being modified, restricted somewhat. Just how? In what sense, sir?

DOUGLAS: Well, the theory has developed in some circles that freedom of speech, which in terms is absolute in the First Amendment, is subject to regulation, to reasonable regulation, by the legislative bodies. The First Amendment says, "Congress shall make no law abridging freedom of speech, freedom of the press, or freedom of religion." It would be unthinkable in the Jeffersonian sense that freedom of press could be regulated by reasonable or unreasonable regulations.

That when the laws says that... the Constitution says that an editor is free to express himself, that apart from such laws as the laws of libel, that are implicit exceptions, that he does not need to submit his editorial page before publication to any board of censors, that he can write what he wants even though it's against the opinion of the government or the majority of the people, that he can present to his readers any point of view, whether it's a minority or majority point of view, whether it's orthodox or unorthodox.

WALLACE: Sam Johnson said... Samuel Johnson said, and I wonder if you would give us your opinion of what I am to read to you now. He said, "Every society has a right to preserve public peace and order, and therefore has a good right to prohibit the propagation of opinions which have a dangerous tendency."

DOUGLAS: That was an idea that Sam Johnson had, and it's still widely held in some parts of the world, but we got away from that when we adopted Jefferson's and Madison's ideas of promulgating a written Constitution. Now the written Constitution that we have says Congress shall not do certain things. The State shall not do certain things. Certain things shall not be done to the citizen. They had in mind the protection of minority views. They had in mind protection of racial minorities, religious minorities, political minorities against all forms and sorts of persecutions. They put up, in other words, little 'no trespassing' signs and said, "Government shall not walk here." And that is how weird our government is, inherently different from many other governments. Different from England because England has no written Constitution.

WALLACE: Well, if I understand your understanding correctly, you believe that no... You believe the Constitution says, "No abridgement of speech is permissible." Let me see if I understand further, what... exactly what you mean by freedom of speech, and I am sure that you have heard this question before. Should freedom of speech be granted to a man who, simply perhaps for the fun of it, leaps up in a theater and shouts "Fire," and thereby causes a panic?

DOUGLAS: Well, that's been one of the classic illustrations in some of the legal literature. Of course, that would not be protected. Of course, a man who does a thing like that would commit a crime and properly so. Such a... such a pronouncement is more than speech, it's really producing a riot; it's... such an announcement is not the dissemination of ideas, it's not discourse, it's not discussion of public events or controversial issues. That certainly would not be protected by the First Amendment. But when it comes down to sociological matters, political matters, economic matters, farm prices, criminal laws, deportation policies, foreign policies, the wide range of public affairs then there should be no regulation or limitation.

WALLACE: Even in the case of a communist or a fascist or a racist who gets up in a meeting and says things that are repugnant to the great majority of society, and even if he takes off after a minority group in a vile and unspeakable way, you still believe that he is entitled to freedom of speech because he is talking within the area of sociology or economics or politics?

DOUGLAS: That was Jefferson's view and it was covered by his First Inaugural. The way to combat those noxious ideas is with other ideas: the way to combat falsehoods is with truth. Bandais made a classic statement in one of his famous historic opinions in the court. Once you start saying, "This man shall not talk about this, or this other man shall not talk about that, then you inaugurate a regime of real censorship, and the question is, Where are you going to stop? And nobody is wise enough to stop at the right place."

WALLACE: I don't mean to carry this to a ridiculous extreme but, for... for instance, would you want to permit a fascist then -- I gather you would -- to get up on a soapbox in front of the White House, call for the overthrow of our government, for its being taken over by a dictator? As far as you are concerned, that's perfectly sensible.

DOUGLAS: (LAUGHS) Well, the front of the White House is a poor place to make a speech! We have traffic problems and traffic problems cannot be allowed to be disregarded by people who want to make a speech at a busy intersection. But you know, the British in Hyde Park -- I've been there, probably you have many times -- have set aside a place where anybody can get up and talk about anything, and there they are, all the crackpots that you can imagine, making these stirring, moving, impassioned speeches in favor of some lost cause or other. It is a good healthy thing for a society to have a place like that, and while in front of the White House would be a poor place to have it, the idea that you are talking about is, I think, a sound one.

WALLACE: Now the fact is, is it not, sir, that some judges and other government officials, who are loyal Americans, do not fully share your views on freedom of speech. They want more restraint, more modification than you do.

DOUGLAS: That's right. We're in an area that is subject to a great debate and this is one point of view.

WALLACE: Well, what is the difference in the basic philosophy between these gentlemen and yourself, as you see it?

DOUGLAS: That is er... that the citizen is, in his beliefs, in his ideas, in his conscience, are superior to government. That the great abuses throughout history have been when government intrudes into the privacy of a man's thinking, when government lays its hand on his shoulder and said, "You shall not worship this way, you shall not think this thought, you shall not read this book." Those have been the great oppressive chapters in human history and the great achievements of our Bill of Rights was to put up, as I said, 'no trespassing' signs and indicate places where government could not intrude.

WALLACE: But, from the other point of view, these are men who feel that for the common defense, for the common security, perhaps it's a good idea to put a little bit of a brake from time to time.

DOUGLAS: Yes, but I should not represent their point of view because I don't agree with it.

WALLACE: The military and political analyst Walter Millis tackled this issue in a pamphlet called Individual Freedom and the Common Defense. And he says that some of our freedoms are being restricted because of the cold war, but he says another factor is what he calls the pressures of personal ambition and partisan fury, and the reactions of those who see in communism less a threat to the free society than to their own positions of power and profit. Would you care to comment about that? Do you see any of that in America?

DOUGLAS: I haven't seen very much of that in America. I think that the influences towards suppression of minority views, towards orthodoxy in thinking about public issues, has been more the subconscious, unconscious influences coming from, to a very great extent, from the tendency among Americans to conform to the picture of the man in the Arrow collar ad: to be safe and sound, and not to deviate or depart from an orthodox point of view; to have no... not much original thinking; to not get away, deviate very far, from what the official policy is as respects Red China, India, Israel, the Arab world, or what have you; to be rather safe and not get into controversial issues so that he won't be called before his board of government to be asked questions, or raise problems with his private employer.

WALLACE: What you are saying, in a way, is that we have freedoms as Americans that we don't use sufficiently?

DOUGLAS: We have a great reservoir of freedoms, the greatest reservoir of freedom of any people in the world. The great reservoir of freedom that we have is, after all, the one outstanding thing that distinguishes us from the communist world. The communist world, as I have seen it is... would be a terrible place to live because there is no place for the spirit of man, for his soul, no place for his conscience, no place for individual utterances of dissident views. You read what is on the bookstands and the bookstands is made up of material that has gone through the Russian censor; and it's all safe and secure stuff from the Russian point of view from the communist point of view. And a man... a man...

WALLACE: But they seem to thrive and flourish, Justice Douglas. We ask the question; Is freedom necessary? Now, evidently, freedom is not necessary to a thriving and flourishing Russian society.

DOUGLAS: I wouldn't call Russia a thriving, flourishing place. To be sure, they can put up a Sputnik, but when you get down into the field of the humanities, when you get into the field of religion, when you get into the field of poetry and literature, it's a very stultifying place. There are no... no ideas. There is a great revolution going on silently inside Russia among the lawyers and the law professors and the judges to get more freedom for the courts.

But they can't get anywhere with their methods... with their proposals for reform because the Communist Party doesn't want reform, they want complete control, complete security, complete monopoly of all the powers; so they're very unwilling to give anything up. It's not a flourishing society; and it's... the one thing that makes our society flourishing is not only the great production lines of automobiles and other commodities, but... but the right to worship, to believe what you think, to speak as you want to, to say on television the things that you want to say and not be censored.

WALLACE: All right, we live in a democracy and the majority, ostensibly, in a democracy rules. Let's look at this freedom of speech angle, therefore, from that point of view. A couple of years ago a survey by a Harvard professor showed the following: "The majority of the people in the United States would not want a communist to speak in their community. The majority of Americans believe that communists should be deprived of their citizenship." This is a democracy. Why should the will of the majority in a democracy, therefore, not be realized?

DOUGLAS: Well, when our court sits down to make a decision on an important case, we would never think of first taking a Gallup poll to find out how people felt about the question because that is an irrelevancy. We live... What people think about it is irrelevant because we live under a government of laws and under a written Constitution. Our Constitution was premised upon the sovereignty of the people. But the men who drew it were wise men and knew that even a majority can be a tyrannist group, that even a majority can be guilty of great oppressions as much as a king, or the Central Soviet Committee.

So they set up safeguards for minorities; and the greatest glory in our Constitution, I think, is, apart from the sovereignty in the people, is the check upon what the government, speaking for the people, can do to the individual, to the minority, whether it'd be a racial minority, whether it'd be a religious minority, or whether be a minority in the branch of literature or in radio or television or economic theory.

WALLACE: Let's move to another area, sir. Talking of freedom of expression in your book, you say, "Literature and morality should enjoy competitive co-existence." What did you mean by that?

DOUGLAS: Well, I think that what I had in mind was the evils that we run into when government assumes the role of being a censor, of imposing upon a community some official's idea as to what is right or decent, what the people should read. You and I as parents have, I think, great responsibilities to be censors of what comes into the house for the children. I think we have a great responsibility to see that they get exposed to the great books, the great literature of the world, and spend their time on that and The Bible and other great books rather than just the trash that is turned out. And I think that church groups can properly become interested in things of that kind. It's when government steps in and uses the police and the powers of imprisonment to become the censor that I... that's where I object. That's where I draw the line.

WALLACE: The government... the government intervention. But you do...?

DOUGLAS: Because all the Constitution speaks about all the way through is what government may not do. They were thinking in terms of protection of the citizen against the government.

WALLACE: But you do agree... or you do feel, I should say, that pressure groups of sorts -- religious, social or commercial -- have the right to bring pressure to bear on books or magazines, let us say, or motion pictures, which they consider offensive or lurid or immoral.

DOUGLAS: They can do what they like as long as they don't enlist the arm of the law to put the law, that is government, the sheriff, or the police behind one social creed, behind one religious doctrine, behind one moral code in preference to others. That's what I meant by literature and morality being competitive.

WALLACE: You have written, Justice Douglas, that restrictions on freedom of speech and expression have been partially responsible for the fact that we have lost ground in science. What did you mean by that?

DOUGLAS: Well, I think that has been only one of several reasons why we have lost ground in science but I think that the restriction upon communication with the rest of the world, with people from various walks of life and points of view and ideological differences, has slowed up the communication. The... Communication is extremely important in any intellectual field.

WALLACE: You feel that...

DOUGLAS: Communication among scholars, and there should be -- for advancement, rapid advancement, continuous advancement in the field of science as well as the humanities -- I think, unlimited... unlimited discourse, unlimited communication between experts without putting barriers up for our men to contact others.

WALLACE: In other words, if I may become this specific, sir, you feel that our scientists should have the right to talk freely about science with Russian or Red Chinese scientists?

DOUGLAS: With everyone. Espionage, of course, is one thing, and all of these things involve certain amount of risk. England turned up with... Fuchs, who was a traitor, and so on. But those things are risks that must be taken. This is... Being alive is itself quite a risk! But to keep the avenues open between the scholars I think is very important, and when I was in Russia I was amazed at the extent to which the Russian libraries are filled with American scientific magazines. Everything is there, that we publish, and... so very little of the Russian is here.

WALLACE: Justice Douglas, we have just about two minutes left and I would like, if I may, to cite one more poll. This one from a recent book called The American Teenager. Taken a couple of years ago, the poll showed that 41 percent of our teenagers disagreed with the principles of freedom of the press, 34 percent were against the principle of freedom of speech; and a few other guarantees in the Bill of Rights were also disapproved of by a large percentage of teenagers. Now then, the question I'd like to put to you, sir, is: Why do you believe that we are apparently failing to raise a new generation with a respect for basic freedoms?

DOUGLAS: Well, I think that we're not giving enough emphasis to it in our schools; I think that too many students come out of grade school and high school without knowing what really... what the Bill of Rights is, that they don't get it emphasized in their classrooms, in their textbooks. I think that what we need is a great educational program. What we need is a wakening of the people to the values that are in our civilization, the great values, and those great values are not our standard of living, fine as that is, but it's in our ideas of freedom, the idea of the dignity of man, the idea of the equality of man, the idea that government cannot do certain things to the individual, that his beliefs, that his conscience, that his ideas are his own, and that it's nobody's business what he thinks.

WALLACE: Are you saying, sir, that a good many of the people, perhaps even a majority of the people listening to you tonight, are insufficiently concerned with their own freedoms.

DOUGLAS: I don't know that they're, putting it that way, that they're in default, but I think that we're all in default in not being alive to the encroachments that have been going on without being alive to the dangers of continuous encroachments, and without being willing to stand up in the school-hall or in the auditorium or in the courtroom and saying, "This should not be done." We disagree with this man but let him speak his mind, and we'll answer him with our own good arguments.

WALLACE: Justice Douglas, I certainly thank you for spending this half hour with us talking about freedom of expression, and if I may quote from page 54 of your book The Right of the People,I believe this is your... these are your words, in the case of Terminiello versus Chicago.

DOUGLAS: Yes, I think I wrote that.

WALLACE: "A function of free speech under our system of government," said Justice Douglas, "is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging," he said, "it may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. The life blood of a free society is freedom of expression. Cut off this life blood and a free society withers and dies. If we are to live as free men, we must think and speak like free men. We must affirm, and not abridge, our freedoms."

Next week on our 'Survival and Freedom' Series, our guest will be a distinguished man of letters who warns that the fruits of the 20th century -- painkilling drugs, motion pictures and television -- are softening up America, perhaps preparing us to fall in line as an authoritarian state. You see him behind me. He's Aldous Huxley, the author of Brave New World, the classic novel about men and women turned into mindless robots under the rule of a dictatorship. If you're curious to know why Aldous Huxley predicts that with the aid of modern technology and propaganda methods, America is becoming a real-life 'Brave New World,' we'll go after that story next week. Till then, Mike Wallace. Good Night.