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Holmes的Abram dissenting opinion

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在那個「反戰就是叛國」的年代,在那個「言論自由」從來保障不了任何人的時代,在愛國主義高漲的美國,在每年都把許多批評戰爭政策的人送進監獄的法院,Holmes大法官在Abram v. United States, 250 U.S. 616 (1919)案的判決,寫了鏗鏘有力,餘音繞樑的不同意見書。他認為單純批評政府政策,不該受到處罰。其中這一段文字,不管在文采或是理論層次,都是注定流傳千古的「言論自由」名言:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition...

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market...

That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

“Freedom for the Thought that We Hate: A Biography of the First Amendment”的作者,也是紐約時報記者的Anthony Lewis就在書中指出,有史以來從來沒有任何法官寫得出 It is an experiment, as all life is an experiment. opinions that we loathe and believe to be fraught with death這樣的文字。Lewis認為”Holmes was the closest we have had to a poet judge.”






台長: 布魯斯

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