Endnotes
- Bitzer , Lloyd . 1968 . “The Rhetorical Situation,” . Philosophy and Rhetoric , 1 (January, 2
- Ball , Howard . 1978 . Judicial Craftsmanship or Fiat?: Direct Overturn by the United States Supreme Court 144 Westport : Greenwood Press .
- 1978 . The Supreme Court and Its Publics Larry Charles Berkson, (Massachusetts Lexington Books
- Berkson . 11 p
- Baum , Lawrence . 1981 . The Supreme Court Washington , D.C. : Congressional Quarterly Press .
- 1961 . The Federalist Papers 465 New York : The New American Library of World Literature, Inc. . ”Alexander Hamilton assured early opponents of the judicial branch that because the Court lacked both purse and sword it would be “…beyond comparison the weakest department of power.” Alexander Hamilton, James Madison, and John Jay,(p
- Baum . 19 p
- Miller , Charles A. 1969 . The Supreme Court and the Uses of History 11 – 12 . Cambridge : The Belknap Press of Harvard University Press . (pp., cited in Candiss Baksa Vibbert, “The Role of Values in Supreme Court Opinions as Legal and Cultural Force,” p. 1, unpublished manuscript presented at the Fifth International Conference on Culture and CommunicationMarch, 1983, Phladelphia
- Kurland , Philip . 1969 . Politics, the Constitution, and the Warren Court 23 Chicago : University of Chicago Press .
- Haiman , Franklyn S. 1981 . Speech and Law in a Free Society 3 Chicago : University of Chicago Press .
- Ball . 148
- Berkson . 65
- 1969 . The New Rhetoric: A Treatise on Argumentation 22 London : University of Notre Dame Press . The expression “composite audience” used in this paper is borrowed from Chaim Perelman and L. Olbrechts-Tyteca, trans., John Wilkinson and Purcell Weaver,(On p., Perelman and Olbrechts-Tyteca write that audiences of parliamentary speeches form a “type of composite audience whose constituent elements are readily discernible.” The term “composite audience” will be used in this paper to refer to the “readily discernible” beliefs and expectations shared by the Court's eight groups of particular audiences
- Berkson . 93 p. Baum describes this expectation as a “widespread belief that the Court should be nonpolitical….” According to Baum, however, this and other related beliefs are a part of the Court's political nature. Baum contends that the Supreme Court should be viewed as both a political and a legal institution. “What it does and how it operates are influenced both by the political process and by the legal system.” Baum, p. 2
- 1968 . Black's Law Dictionary St. Paul : West Publishing Co., Revised Fourth Edition . (p. LXXI
- Ball, xii
- Ball, p. 4., citing Roscoe Pound's “The Status of the Rule of Judicial Precendent.”
- Wasserstrom , Richard A. 1961 . The Judicial Decision: Toward a Theory of Legal Justification 83 Palo Alto : Stanford University Press . (p. Wasserstrom's italics
- Jones , Stephen B. 1976 . 128. For a discussion of the important legal and rhetorical functions served by “underlying principles,” see Benjamin Cardozo . The Nature of the Judicial Process , 12 See, “Justification in Judicial Opinions: A Case Study,” Journal of the American Forensic Association, (London: Yale University Press, 1969)
- LeDuc , Don R. 1976 . “‘Free Speech’ Decisions and the Legal Process: The Judicial Opinion in Context,” . Quarterly Journal of Speech , 62 (Oct., 279
- 1982 . Major Principles of Media Law 3 – 195 . New York : Holt, Rinehart, and Winston . See, for example, Overbeck and Pullen,(p.; and William Lyon Benoit, “An Empirical Investigation of Argumentative Strategies Employed in Supreme Court Opinions,” in Dimensions of Argument: Proceedings of the Second Summer Conference on Argumentation, George W. Ziegelmueller and Jack L. Rhodes, eds., [Annandale: Speech Communication Association, 1981], pp.179
- 1948 . Political Freedom: The Constitutional Powers of the People 8 – 92 . New York : Harper and Row Brothers . See Alexander Meiklejohn,(esp. “Free Speech and Its Relation to Self-Government,” pp. Meiklejohn argues that the people are the government through an explicit compact
- 167 Baum shows that the Court has in fact “been quite favorable to civil liberties in judging conflicts between those liberties and other values.” Baum, p. See also Baum's graph of judicial decision-making patterns, p. 168
- Berger , Raoul . 1977 . Government by Judiciary: The Transformation of the Fourteen Amendment 250 Cambridge : Harvard University Press .
- This precept is significantly less evident in cases involving the press. Here it may be argued that judicial holdings for the press against acts of legislation are holdings protecting the separation of the press (or “Fourth Estate” of the people) from undue governmental control
- Ball, p. 90
- 1981 . Free Speech Yearbook 1980 112 – 15 . Annandale , Va : Speech Communication Association . For an insightful discussion of this phenomenon, see William I. Gordon and Dominic A. Infante, “Attitudes Toward Free Speech: Trends, Measurement and Individual Difference Considerations,” in
- 1965 . The Judicial Mind Evanston : Northwestern University Press . Glendon Schubert offers empirical data to argue that in practice only those Justices who are themselves “least intense in their attitude toward the C-scale issues”–issues involving civil liberties—are likely to respond extensively to “external stimuli.” See(Schubert's findings regarding judicial decision making do not, however, mitigate against the rhetorical significance judicially responsive rhetorical invention has in this legal context
- 1968 . The Supreme Court and Political Freedom 111 New York : The Free Press . samuel Krislov,(p
- Krislov . 113 p
- 1937 . palko v. Connecticut, 302 U.S. 319, 327
- Krislov . 118 – 119 .
- Haiman . Speech and Law in a Free Society 98 p. See this book generally for a persuasive defense of the “preferred position” concept
- 1977 . Government and the Mind 100 Oxford : Oxford University Press . joseph Tussman,(p
- Tussman . 11 and 172
- Hand, at 50, 51, cited in Berger, p. 267
- Meiklejohn . 57 p
- Krislov . 97 p
- Haiman , Franklyn S. 1982 . “Nonverbal Communication and the First Amendment: The Rhetoric of the Streets Revisited,” . Quarterly Journal of Speech , 68 : 31
- 1968 . Free Speech Yearbook: 1972 254 – 282 . Hinsdale , IL : Dryden Press . Schubert. See also, Glendon Schubert, “Judicial Attitudes and Voting Behavior,” in Federal Judicial System, !Sheldon Goldman and Thomas Jahnige,(pp. For a useful summary of Schubert and a companion essay, “Voting Behavior in the United States Supreme Court,” by C. Herman Prichett (pp. 216–232), see Ruth McGaffey, “Toward A More Realistic View of the Judicial Process in Relation to Freedom of Speech,” in (New York: Speech Communication Association, 1973), pp. 8–20
- 1964 . Elements of Judicial Strategy Chicago : University of Chicago Press . For an interesting discussion of the role these conflicts play in judicial politics, see Walter Murphy
- September 11, 1804, cited in Berger, p. 272
- 1922 . Prudential Inc. Co. v. Cheek 270 259 U.S. 530, 538 cited in Berger, p
- Berger . 273 p
- Gitlow v. New York, 268 U.S. 652 1925
- This clause reads: “…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Meiklejohn argued that the freedom of speech covered under the First Amendment was non-abridgable, while the liberty of speech implied by the language of the Fourteenth Amendment was abridgable. However, as was noted earlier, Meiklejohn provided no criteria for applying this distinction. See Meiklejohn, pp. 36–50 and Krislov, pp. 96–97
- 1926 . New Republic 260 cited in Berger, p
- Meiklejohn . 54 p
- Berger . 250 p
- 1976 . Form and Genre: Shaping Rhetoric Action 331 – 350 . Falls Church , Virginia : Speech Communication Association . Interestingly, this context seems to fit many of the requisites of an institutional genre. Though time and space do not permit pursuit of this concept here, I would encourage the reader to give this idea further consideration. For a useful discussion of genres, see Karlyn Kohrs Campbell and Kathleen Hall Jamieson,(Kathleen M. Hall Jamieson, “Generic Constraints and the Rhetorical Situation,” Philosophy and Rhetoric 6(Summer, 1973),162–170; Edwin Black, Rhetorical Criticism: A Study in Method, (New York: MacMillan, 1965); Jackson Harrell and Wil A Linkugel, “On Rhetorical Genre: An Organizing Perspective,” Philosophy and Rhetoric 11(Fall, 1978), 262–281; and the “Special Report on Rhetorical Criticism, “in Western Journal of Speech Communication 44 (Fall, 1980), esp. 288–315 and
- 1943 . West Virginia Board of Education v. Barnette 319 U.S. 624 at 630
- Haiman contends that “Reasonable regulations as to time, place, and prior notification are premissible, but rules which make possible arbitrary or prejudicial governmental restraints on speech are not.” As this paper will show, Justices often fail to adhere to this principle. Franklyn. S. Haiman, Freedom of Speech; Issues and Cases, (New York: Random House 1965), p. 16
- schenck v. United States, 249 U.S. 211; Debs v. United States, 249 U.S. 211; and Frohwerk v. United States, 249 U.S. 204; all in 1919
- 1927 . whitney v. California, 274 U.S. 357; and Gitlow v. New York, 268 U.S. 652 (1925)
- 1951 . Dennis v. United States 341 U.S. 491
- Chafee , zechariah Jr. 1954 . Free Speech in the United States 325 Cambridge : Harvard University Press .
- 31 – 50 . Interestingly, as early as 1948, Meiklejohn recognized the dangers inherent in adoption of this test. Meiklejohn wrote that this judicial formula offers “an exception to the principle (of free speech) rather than an interpretation of it.” p. See pp. 29 for Meiklejohn's criticism of the test
- Dennis From the trial judge's charge to the original jury
- The Quarterly Journal of Speech , 53 Cases such as these reenforce the need for careful scrutiny of judicial activity in this area of adjudication. Franklyn Haiman writes appropriately, “…one can only marvel at the rationalizations a society will invent to justify suppression of the deviant.” Franklyn S. Haiman, “The Rhetoric of the Streets: Some Legal and Ethical Considerations,”(April, 1967 109
- 1957 . Yates v. United States 354, U.S. 298
- 1961 . Scales v. United States, 367 U.S. 203
- 1961 . Noto v. United States 367 U.S. 290
- 1981 . Quarterly Journal of Speech 69 – 80 . paul Siegel, “Protecting Political Speech: Brandenburg v. Ohio, Updated,” 67 (February
- 1965 . Cox II Cox v. Louisiana (379 U.S. 559
- 1963 . Edwards v. South Carolina 372 U.S. 229
- 1965 . Cox v. Louisiana (Cox I), 379 U.S. 536
- For a critical discussion of these cases, see Haiman, “Nonverbal Communication and the First Amentment….”
- 1942 . Chaplinsky v. New Hampshire 315 U.S. 568
- 1964 . New York Times v. Sullivan 376 U.S. 254 Let the reader note that unlike the rest of the cases discussed here, this case involves the press
- 1949 . Terminiello v. Chicago 337 U.S. I
- Kane , Peter E. , ed. 1981 . Free Speech Yearbook: 1980 1 – 16 . Annandale , Virginia : Speech Communication Association . For an intersting criticism of the Court's applications of the clear and present danger test, see William Bailey, “The Supreme Court and Communication Theory: Contrasting Models of Speech Efficacy,” in
- Haiman . Speech and Law in a Free Society 4
- Ball . 144