Justice Brennan, Due Process and the Freedom of Speech: A Celebration of Speiser v. Randall
![handle is hein.journals/jmlr20 and id is 17 raw text is: JUSTICE BRENNAN, DUE PROCESS AND THE
FREEDOM OF SPEECH: A CELEBRATION OF
SPEISER v. RANDALL*
BY GEORGE ANASTAPLO**
Had any one writt'n and divulg'd erroneous things & scandalous to
honest life, misusing and forfeiting the esteem had of his reason
among men, if after conviction this only censure were adjudg'd him,
that he should never henceforth write, but what were first examin'd
by an appointed officer, whose hand should be annext to passe his
credit for him, that now he might be safely read, it could not be ap-
prehended lesse than a disgraceful punishment. Whence to include
the whole Nation, and those that never yet thus offended, under such
a diffident and suspectful prohibition, may plainly be understood
what a disparagement it is. So much the more, when as dettors and
delinquents may walk abroad without a keeper, but unoffensive books
must not stirre forth without a visible jaylor in thir title.
- John Milton, Areopagitica: A
Speech For the Liberty of
Unlicenc'd Printing
(emphases added)
I.
Due process, it has been noticed, is the ancient core of consti-
tutionalism.' Perhaps, indeed, it is due process, more than any
other right or privilege, which is intimately associated with the ways
of lawyers and judges.2
The lawyerlike judge may be seen in the Opinion prepared for
* The reader is urged, as with my other publications, to begin by reading the
text through without consulting the notes.
** A.B., 1948, J.D., 1951, Ph.D., 1964, The University of Chicago; Professor of
Law, Loyola University of Chicago; Professor Emeritus of Political Science and of
Philosophy, Rosary College; and Lecturer in the Liberal Arts, The University of
Chicago.
1. 3 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION at 1463 (L. Levy, K. Karst,
& D. Mahoney eds. 1986) [hereinafter ENcY. Am. CONST.] I do not retain in quotations
from this encyclopedia the capitalization used for cross-references.
In this article, taxpayer refers to both human beings and to agents of taxpay-
ing organizations; freedom of speech refers to both freedom of speech and freedom
of the press.
2. Compare my characterization of Justice Harlan as ungenerous and un-
lawyerlike in his failure to give the record made in a case its due. See, e.g., Anas-
taplo, Mr. Justice Black, His Generous Common Sense, and the Bar Admission
Cases, 9 SOUTHWESTERN UNIv. L. REv. 977, 993-5 (1977).](ViewImageLocal?handle=hein.journals/jmlr20&div=9&collection=&method=preview&ext=.png&size=3)
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Justice Brennan, Due Process and the Freedom of Speech: A Celebration of Speiser v. Randall
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