You Can't Put Too Much Water in a Nuclear Reactor

 Posted on January 07, 2018 in Uncategorized

At the outset we reject the view that freedom of speech and association, as protected by the First and Fourteenth Amendments, are ‘absolutes,' not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment.

Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 (1961) (citation omitted).

What does that mean?

X = the view that where the constitutional protection exists it must prevail;

Y = the view that the scope of that protection must be gathered solely from a literal reading of the First Amendment.

Is the Court rejecting (X and Y), or is it rejecting X and rejecting Y?

If it is rejecting X and rejecting Y, then why did the Court not write, "we reject the view that freedom of speech and association are absolutes either in the sense that where the constitutional protection exists it must prevail, or in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment."

And if it is rejecting (X and Y), then is the Court rejecting X, rejecting Y, or rejecting both?

Justice Black, dissenting, took the view that the Court was rejecting X and rejecting Y:

The Court, by stating unequivocally that there are no ‘absolutes‘ under the First Amendment, necessarily takes the position that even speech that is admittedly protected by the First Amendment is subject to the ‘balancing test' and that therefore no kind of speech is to be protected if the Government can assert an interest of sufficient weight to induce this Court to uphold its abridgment.

Konigsberg v. State Bar of Cal., 366 U.S. 36, 67 (1961) (Black, J., dissenting).

The West headnote takes this position too, subtly changing the grammar of the sentence from the conjunctive to the disjunctive:

Freedom of speech and association, as protected by the First and Fourteenth Amendments to the Federal Constitution, are not absolutes either in the sense that, where constitutional protection exists, it must prevail, or in sense that scope of protection must be gathered solely from literal reading of First Amendment.

But if the Court is rejecting X, then how is the "sense that where the constitutional protection exists it must prevail" "undoubted"? How do you reject an "undoubted" sense?

Did the Court mean that it is undoubtedly not true that where the constitutional protection exists it must prevail (because even protected speech may sometimes be restricted by content-neutral regulations)?

How could an "undoubtedly untrue sense" be an "undoubted sense"? And if the sense were undoubtedly untrue, why even include it? Why not just write, " we reject the view that freedom of speech and association are ‘absolutes' in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment."

I'm a fan of semantic ambiguity, but maybe not so much in Supreme Court opinions.