1. Kalven, Harry Jr, A Worthy Tradition: Freedom of Speech in America (New York: Harper and Row, 1988), 81.Google Scholar

2. This account draws on the papers of seven of the nine justices participating in this case. The Library of Congress Manuscript Division, Washington, D.C., maintains the papers of Justices Douglas, Rutledge, Black, Burton, and Jackson, plus a microfilm copy of Justice Frankfurter's papers (maintained at Harvard University). Justice Murphy's papers are at the Library of Congress and the Bentley Historical Collection of the University of Michigan. The two unexamined collections are those of Chief Justice Vinson and Justice Reed, both kept at the University of Kentucky. Early versions of Chief Vinson's narrow dissent were circulated among the justices and found in other collections.

3. Jeansonne, Glen, Gerald L. K. Smith: Minister of Hate (New Haven: Yale University Press, 1988), 206–7.Google Scholar

4. Accounts of the evening provided to the court differed. Some reported a erowd of 1,500 persons assembled outside the hall. In addition to the facts recited by the U.S. Supreme Court, see the decisions of the Illinois Supreme Court, 400 111. 23, at 25, 79 N.E.2d 39 (1948); the appellate court for the Illinois third district, 332 111. App. 17, 26–27 (1947); “Clashes Mark Gerald Smith Rally; Seize 19,” Chicago Tribune, Feb. 8, 1946, 10; and “Gerald Smith and 2 Others Post Bonds in Clash at Rally,” Chicago Tribune, Feb. 9, 1946, 9.

5. Municipal Code of Chicago, sec. 193–1 (1939), quoted in Terminiello v. City of Chicago, 337 U.S. 1, 2 (1949), n. 1.

6. Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942).

7. See Landmark Briefs of the Supreme Court of the United States, vol. 46 (Arlington: University Publications of America, 1975).Google Scholar

8. 249 U.S. 47 at 52, quoted in Terminiello v. City of Chicago, 26, with brackets supplied by Justice Jackson.

9. Papers of Harold H. Burton, Manuscript Division, Library of Congress, Box 190, Case No. 272, Binder: “Argued Cases 1948 Term, No. 250 to No. 429,” emphasis in original.

10. Papers of Frank Murphy, Bentley Historical Collections, University of Michigan, Box 74, Case No. 272, Folder 7S-31: “Supreme Court Case Files, 1948 Term, Misc.”

11. Cooper, Philip J., Battles on the Bench: Conflict inside the Supreme Court (Lawrence: University Press of Kansas, 1995), 100.Google Scholar

12. The incident was a stepping stone in the debate over recording oral arguments. Justice Black sent a memorandum to the conference on April 8, 1949, questioning what was said at oral arguments. He wrote, “I did not understand the counsel for Terminiello either explicitly disclaimed or specifically waived any objection to that part of the court's charge made the basis of Justice Douglas's opinion. What I understood counsel to say was that he admitted that he had not excepted separately to this particular part of the court's charge. This case therefore again raises the question of whether we should have a stenographic report made of oral arguments.” Papers of William O. Douglas, Manuscript Division, Library of Congress, Box 186, October Term 1948, Case No. 272.

13. Terminiello v. City of Chicago, 4.

14. Kalven, A Worthy Tradition, 83.

15. Murphy papers, Box 74, Case No. 272.

16. Burton papers, Box 190, Case No. 272.

17. Murphy papers, Box 74, Case No. 272.

18. Ibid.

19. “A Hard Man to Pigeonhole,” Time (October 18, 1954), 24.

20. Jackson, Robert H., The Struggle for Judicial Supremacy: A Study of a Crisis in American Power Politics (New York: A. A. Knopf, 1941), vii.Google Scholar

21. See Wickard v. Filburn, 317 U.S. Ill (1942) and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

22. Rosenwein, Samuel, “The Supreme Court and Freedom of Speech—Terminiello v. City of Chicago,” Lawyers Guild Review 9(2) (1949): 70, 75.Google Scholar

23. Jaffe, Louis L., “Mr. Justice Jackson,” Harvard Law Review 68 (1955): 982CrossRefGoogle Scholar; Freund, Paul A., “Individual and Commonwealth in the Thought of Mr. Justice Jackson,” Stanford Law Review 8 (1955): 17–19CrossRefGoogle Scholar; Freund, Paul A., “Mr. Justice Jackson and Individual Rights,” in Mr. Justice Jackson: Four Lectures in His Honor (New York: Columbia University Press, 1969), 29–56.Google Scholar

24. Hockett, Jeffrey D., “Justice Robert H. Jackson, the Supreme Court, and the Nuremberg Trial,” in The Supreme Court Review, ed. Casper, Gerald, Hutchinson, Dennis J., and Strauss, David A. (Chicago: University of Chicago Press, 1990), 257–99Google Scholar; Hockett, Jeffrey D., New Deal Justice: The Constitutional Jurisprudence of Hugo L. Black, Felix Frankfurter, and Robert H. Jackson (Lanham: Rowman and Littlefield, 1996).Google Scholar

25. Terminiello v. City of Chicago, 13 (J. Jackson, dissenting). Except as noted, subsequent quotations in this section are from Jackson's dissent and the excerpts of Terminiello's speech included in it.

26. Kalven, A Worthy Tradition, 83.

27. See Gitlow v. New York, 268 U.S. 652 (1925) and Whitney v. California, 21A U.S. 357 at 372 (1927) (Justices Brandeis and Holmes, concurring).

28. Justice Jackson added the emphasis to the text of the speech.

29. In the next sentence—which Jackson did not include in his opinion—Terminiello changes the message: “We are not going to be tolerant any longer of their pagan eye for an eye philosophy,” implying that Christians should not fight back. Jackson retained a marked-up copy of the speech from the trial record. “Testimony of Mabel Hall and Plaintiff's Exhibit 3,” Papers of Robert H. Jackson, Manuscript Division, Library of Congress, Box 167, October Term 1950, Case No. 93, Feiner v. New York. At the time of this author's research, some materials pertaining to Terminiello v. City of Chicago were found with materials related to Feiner v. New York, 340 U.S. 315 (1951), a case involving similar issues.

30. Cantwell v. Connecticut, 310 U.S. 296, 308 (1940), as quoted by Jackson.

31. Jackson here refers to the advertized title of the meeting.

32. Schlesinger, Arthur M. Jr, The Vital Center: The Politics of Freedom (Boston: Houghton Mifflin, 1949).Google Scholar See also, Lippincott, Benjamin, Democracy's Dilemma: The Totalitarian Party in a Free Society (New York: The Ronald Press, 1965).Google Scholar

33. Bagehot, Walter, Physics and Politics, in The Collected Works of Walter Bagehot, ed. John-Stevas, Norman St., (London: The Economist, [1872] 1974), 7: 42.Google Scholar

34. Ibid., 31.

35. Ibid., 73.

36. Ibid., 120.

37. Jackson Papers, Box 155, October Term 1948, Case No. 272, Terminiello v. City of Chicago.

38. Jackson Papers, Box 155, Case No. 272.

39. Bagehot, Physics and Politics, 123.

40. Terminiello v. City of Chicago, 14.

41. Ibid., 32–33.

42. Bagehot, Physics and Politics, 110.

43. Jackson Papers, Box 155, Case No. 272.

44. Terminiello v. City of Chicago, 32–33.

45. Ibid., 33.

46. Ibid., 36.

47. Bagehot, , “The Metaphysical Basis of Toleration,” in The Collected Works of Walter Bagehot, ed. John-Stevas, Norman St. (London: The Economist, [1874] 1986), 14: 57–74.Google Scholar

48. John-Stevas, Norman St., Walter Bagehot: A Study of His Life and Thought Together with a Selection from His Political Writings (Bloomington: Indiana University Press, 1959), 59.Google Scholar

49. Terminiello v. City of Chicago, 33. Jackson owed a debt to another justice for part of this famous dicta. In his handwritten drafts, Jackson had the core idea that it would be “ignoble and disastrous improvidently to throw away those defenses which bulwark liberty.” An intervening memo in his papers from an unnamed justice—possibly Justice Burton, who joined Jackson's opinion—clearly guided Jackson's choice of language. The second justice wrote:

In the first draft I saw you had a statement somewhere that the state courts and law officers did not face a theory but a situation. I thought that could be elaborated on in a paragraph which might also provide the opportunity to show up the ‘order vs. liberty’ assumption which is shot through most of Douglas's work. The following is in no doubt inadequate but indicates the thought:

This case affords a typical example of the difference between this Court's approach to many cases and that taken by state courts and law officers. That difference is the difference between theory and practice, between fiction and fact. This court apparently views order as the death knell of liberty—while state courts know that without order there is no liberty. The choice is not between order and liberty—it is between order with liberty, and anarchy without it. Liberty can live with law—but not without it; it cannot co-exist with anarchy. The theory and promise of anarchy is complete liberty of all from every restraint—in practice it provides liberty for none but the lawless. The fiction of anarchy is that it means freedom from compulsion—the fact is that it destroys freedom by compulsion. The weak have no rights facing the strong; the minority has no rights the majority cannot abolish, by force or otherwise; the individual is destroyed by the mob, or compelled to join it. When the Court strikes down order as a barrier to freedom, it looses forces which bid fair to destroy both.

50. Botein, Stephen, “Cicero as Role Model for Early American Lawyers: A Case Study in Classical ‘Influence,’” Classical Journal 73 (1978): 313–21.Google Scholar

51. Jackson, The Struggle for Judicial Supremacy, 301.