First Amendment
Black generally took an absolutist approach to First Amendment jurisprudence, believing the first words of the Amendment that "Congress shall make no law ..." to be most appropriately taken completely literally. Black rejected the creation of judicial tests for free speech standards, such as the tests for "clear and present danger", "bad tendency", "gravity of the evil", "reasonableness", or other balancing approaches. Black wrote that the First Amendment is "wholly 'beyond the reach' of federal power to abridge ... I do not believe that any federal agencies, including Congress and the court, have power or authority to subordinate speech and press to what they think are 'more important interests.'"
Black believed that the First Amendment erected a metaphorical wall of separation between church and state. During his career Black wrote several important opinions relating to church-state separation. He delivered the opinion of the court in Everson v. Board of Education (1947), which held that the establishment clause was applicable not only to the federal government, but also to the states.
In four bar applicant appeals to the Supreme Court, Black advanced the argument that a person's political affiliation or beliefs, without action, was not enough to establish evidence of bad moral character. Black argued in Schware v. Board of Bar Examiners (1957) that New Mexico could not bar Schware from becoming a lawyer because he might have, at one time, consorted with Communist causes. Schware was, in fact, a decorated veteran who fought in World War II. Black reaffirmed this position in Konigsberg v. State Bar of California (1957), where a majority of the court sided with Black. However, in both Konigsberg v. State Bar of California II (1961), and In re Anastaplo (1961), the majority of justices, over Black's vigorous dissent, determined that a person who refused to answer whether they had been a member of an organization on the attorney general's Subversive Organizations List could be denied admission to the bar on the basis of bad character. Black wrote, in his Anastaplo dissent:
Anastaplo has not indicated, even remotely, a belief that this country is an oppressive one in which the 'right of revolution' should be exercised. Quite the contrary, the entire course of his life, as disclosed by the record, has been one of devotion and service to his country—first, in his willingness to defend its security at the risk of his own life in time of war and, later, in his willingness to defend its freedoms at the risk of his professional career in time of peace.
Black's majority opinion in McCollum v. Board of Education (1948) held that the government could not provide religious instruction in public schools. In Torcaso v. Watkins (1961), he delivered an opinion which affirmed that the states could not use religious tests as qualifications for public office. Similarly, he authored the majority opinion in Engel v. Vitale (1962), which declared it unconstitutional for states to require the recitation of official prayers in public schools.
Black is often regarded as a leading defender of First Amendment rights such as the freedom of speech and of the press, at least within his unusually narrow conception of what speech was. He refused to accept the doctrine that the freedom of speech could be curtailed on national security grounds. Thus, in New York Times Co. v. United States (1971), he voted to allow newspapers to publish the Pentagon Papers despite the Nixon Administration's contention that publication would have security implications. In his concurring opinion, Black stated:
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. ... The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment.
Black rejected the idea that the government was entitled to punish "obscene" speech. Likewise, he argued that defamation laws abridged the freedom of speech and were therefore unconstitutional. Most members of the Supreme Court rejected both of these views, but Black's interpretation did attract the support of Justice Douglas.
However, Black did not believe that individuals had the right to speak wherever they pleased. He delivered the majority opinion in Adderley v. Florida (1966), controversially upholding a trespassing conviction for protesters who demonstrated on government property. He also dissented from Tinker v. Des Moines (1969), in which the Supreme Court ruled that students had the right to wear armbands (as a form of protest) in schools, writing:
While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases.
Moreover, Black took a narrow view of what constituted "speech" under the First Amendment; for him, "conduct" did not deserve the same protections that "speech" did. For example, he did not believe that flag burning was speech; in Street v. New York (1969), he wrote: "It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense." Similarly, he dissented from Cohen v. California (1971), in which the court held that wearing a jacket emblazoned with the words "Fuck the Draft" was speech protected by the First Amendment. He joined Justice Harry Blackmun's dissent, which asserted that this activity "was mainly conduct, and little speech".
As a justice, Black held the view that the court should literally enforce constitutional guarantees, especially the First Amendment free speech clause. He was often labeled an 'activist' because of his willingness to review legislation that arguably violated constitutional provisions. Black maintained that literalism was necessary to cabin judicial power, which informed his dissent in Anastaplo.
