Tuesday, February 3, 2009

Barrett on a Forgotten Free Speaker

John Q. Barrett, St. John’s University School of Law, sent out the following message today to the recipients of his occasional reports on U.S. Supreme Court Justice Robert H. Jackson. (The original will be posted with other archived messages to Professor Barrett's "Jackson List" here. )

Professor Barrett writes:
This morning’s New York Times brought the sad news of the death ten days ago of Irving Feiner, age 84, of Nyack, New York. In 1949, when Feiner was a student at Syracuse University, he was arrested for disorderly conduct after he, speaking from a soapbox at a Syracuse street corner to a crowd of interested listeners and less enthusiastic onlookers, ignored police orders to shut up.

After Feiner was convicted and sentenced to thirty days in prison, he appealed. His case ultimately reached the Supreme Court of the United States. In January 1951, the Court affirmed Feiner’s conviction by a vote of 6-3, upholding the lawfulness of the police conduct and rejecting Feiner’s free speech claims. Chief Justice Fred M. Vinson, joined by Justices Stanley Reed, Felix Frankfurter, Robert H. Jackson, Harold H. Burton and Tom C. Clark, wrote for the Court. Justice Frankfurter also filed, in a companion case, a concurring opinion stating his views.

Justice Hugo L. Black filed the principal dissenting opinion. Its many ringing passages include the following:

Here [Feiner] was “asked” then “told” then “commanded” to stop speaking, but a man making a lawful address is certainly not required to be silent merely because an officer directs it. [Feiner] was entitled to know why he should cease doing a lawful act. Not once was he told. I understand that people in authoritarian countries must obey arbitrary orders. I had hoped that there was no such duty in the United States.

(According to Mr. Feiner, one of Justice Black’s sons told Feiner years ago that Feiner was one of Justice Black’s favorite and most troubling cases.) Justice William O. Douglas, joined by Justice Sherman Minton, also dissented. (Feiner v. New York, 340 U.S. 315 (1951).)

Irving Feiner never met any of the Supreme Court justices who decided his case and, in fact, he never even saw them in action. Feiner told me that he did not travel to Washington in October 1950 to attend the Supreme Court oral argument in his case because his attorneys told him that they did not need the dynamic of the FBI surveilling Feiner, as they then were, inside the Supreme Court courtroom as the lawyers argued the merits of his case.

From the 1951 decision through the rest of his life, Feiner believed emphatically that Jackson and the five other Justices who comprised the majority in the Feiner v. New York blew it. By contrast, Feiner’s heroes for getting both the facts and law right in his case were, of course, Justices Black, Douglas and Minton. The Supreme Court, by moving during recent decades away from the doctrine of Feiner v. New York, implicitly seems to share that view.

I knew Irv Feiner only by telephone, but that medium delivered very well his smarts, strong opinions, guts and very active mind. ...

Like many other Supreme Court “losers” across our history, Irving Feiner leaves us his name, his story and his example of serious citizenship—a rich legacy indeed.
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