Mr. Justice Jackson, Free Speech, and the Judicial Function

All free speech cases decided by the United States Supreme Court are hard cases; and, if they do not, according to the old saw, make bad law, they do make law which is both fragile and fascinating. Wrapped up inside the kernel of each of these cases are many of the most troublesome problems which confront a democratic government: the relation of majority rule to minority rights, the necessity of peace and order but the equally imperative necessity of open discussion, and, not least, the paradoxical role of an appointive judiciary in curbing, in the name of democracy and freedom, popularly elected legislative and executive officials. In the determination of this area of public policy, legal precedent is more shadow than substance; and the political philosophy of the individual justice becomes a matter not only of interest, but of paramount importance.