The Charlotte News

Tuesday, May 21, 1940


Site Ed. Note: The case of which Cash writes in "Reaffirmation" is Cantwell v. Connecticut, 310 U.S. 296, holding that a law which acts to prohibit the handing out of religious literature, here that of Jehovah's Witnesses, in a public place, is violative of the First Amendment rights to free speech and free exercise of religion. In one particular, however, Cash's account of the Cantwell case is incorrect, the lower court having held the defendants guilty of inciting others to breach the peace, and not guilty of assault, assault being an offense which requires either an intentional and offensive touching or attempted offensive touching of the person or of property intimately associated with the person, "offensive" being that which a finder of fact determines a "reasonable person" would consider offensive. What is a "reasonable person"? Don't ask unreasonable and offensive questions. (Rule of thumb--or more than arm's length: If ever in a yelling match, don't touch or gesticulate too wildly. We all know well not to pull a gun or knife.) Don't blame Mr. Cash on this error, however, as he was no doubt relying on published wire reports for the editorial, rather than the opinion itself.

Perhaps the limits of freedom of speech were being tested in 1977, in National Socialist Party of America v. Skokie, 432 U.S. 43, when the high Court held, per curiam, that the Illinois Supreme Court, having found the denial of a permit to Nazis to march in a predominantly Jewish township violated the right of freedom of speech but having refused to stay the injunction prohibiting the march pending the lengthy appellate process to overturn the injunction, should have issued the stay, effectively granting the right to march. Did this go too far? What would Cash have said had he lived to be 77? Hard to know, but it is clear testimony to the strength of the Constitution under fire--or, as it was in this case, while someone shouted fire in a crowded theater. Note, however, that the Supreme Court only decided this case on procedural grounds regarding the law of injunctive relief, not on the Constitutional right of freedom of speech. Two months later, Justice Stevens refused the Nazis a stay of an amended injunction which permitted the march but prohibited the display of swastikas during it. Time, place, manner...

As to the analysis of what constitutes being under the influence, the accepted rule of thumb has changed, though only slightly, so don't rely too closely on that printed below and then complain to the occifer or the judgey-wudgey that Mr. Cash said it was perfectly alright, sirrah. Clearer rule of thumb: One twelve ounce beer or eight ounce glass of wine per hour equals .02 of blood-alcohol in an average sized male adult, slightly more for smaller framed individuals. Thus, if you've had more than three, two to be on the safe side, don't crank it. If you drink 32 to 48 ounces of beer, as indicated below one can and still be sober, in four hours or less, you are likely hovering in the vicinity of the legal limit, now .08 in most states. (And we might add that some states now prohibit drivers under the age of 21 to have even .01 concentration of blood-alcohol, meaning that in such case if you have half of one, you will wind up explaining to the judge why you had trouble reciting the alphabet, or omitted a comma--not good. Judges prefer whole sentences.) They wear off at the rate of one beer per hour of abstinence. Handy to know for both the drinker and the rest of us out there on the highway. It's not whether you are falling down or staggering but merely whether your reaction time is sufficiently impaired to create a hazard.

Challenges to drunk driving laws under the Bill of Rights, incidentally, to which Cash alludes, consisted primarily of whether it was an illegal search and seizure to involuntarily draw blood from an unconscious or conscious accused to determine blood-alcohol. Those cases culminated in Schmerber v. California, 384 U.S. 757, decided in 1966 against the defendant on the notions that it does not violate the Fourth Amendment right to be free from unreasonable searches and seizures when an officer, without a warrant or the consent of the accused, nevertheless has probable cause to believe that the defendant has committed an offense, to wit, being under the influence of a controlled substance or alcohol, undertakes a limited intrusive procedure through trained medical personnel to draw blood to test blood-alcohol in order to prevent "destruction of evidence", i.e., sobering up before the test could be conducted. Nor was such an involuntary procedure deemed to deprive the accused of his privilege against self-incrimination as the physical evidence thus procured was deemed not to be testimonial in nature, that Fifth Amendment privilege being limited to compelled or coerced incriminating verbal or written statements. Likewise, Due Process was not infringed. And all of this body of law on drunk driving is complicated by the fact that tests for blood-alcohol fall under the implied consent laws, that being that when we obtain the privilege of a license to drive, we impliedly consent to certain regulation by the State on the streets and highways, the granting of the privilege to drive being a legitimate state regulatory function under the so-called police powers of the Tenth Amendment, interpreted to give the states power to regulate the health, morals, safety, and welfare of their citizens--all very necessary to be able to explain to some people who will deny it and drive off without license plates on their cars. (But bear in mind that the power to regulate morals is not equivalent to the right to regulate mau-rals, especially when it conflicts with other rights guaranteed by the Bill, such as privacy, speech, etc. Okay? Don't like it? Move to Mexico or attend law school, preferably a good one, for three years.)

But, as to Cash's statement that we best always be wary of insuring the preservation of the Bill of Rights, especially when under attack, lest we become akin to the enemy we are fighting and lose the freedom which we, and so many generations before us, are trying to defend, as well as his sardonic denunciation of Sentimentalists as essentially overly emotive busy-bodies without the objectifying sense to come in out of the rain--and listen--well, it would appear he was right then--and now in 2002, as well.


Which Is Particularly Fitting Just at Present

With the tide running steadily against the Bill of Rights--and sometimes, we are tempted to think, not without reason so far as Fifth Columnists in the country go--the Supreme Court of the United States still stands by it.

Yesterday it handed out a decision in the case of one Jesse Cantwell of New Haven, Conn. The fellow is no pleasant sort. A religious bigot, he had gone about collecting a group of Catholics on the public street by various devices designed to make them think that they were going to be edified according to the tenets of their faith, only to play to them a phonograph record denouncing Catholicism as a mere snare of Satan.

The Court, with Justice Roberts writing the opinion, ruled unanimously that there had been no assault (the offense of which the man had been found guilty in the lower court) or other disturbance, "but only an effort to persuade a willing listener to buy a book or to contribute money in the interest of what Cantwell, however misguided others may think him, conceived to be true religion."

There may be some doubt about the first proposition. After all, listeners suddenly assaulted with something entirely different from what they have been led to expect may be anything else but willing. For all that, the Court's decision is unquestionably sound under the theory of the Bill of Rights. For that instrument deliberately intended that obnoxious nuisances should have their say freely also.

And it is just as well that the Court should reassert the principle at this particular juncture of affairs. When we have destroyed the Bill of Rights we shall not have much left to fight for. Our problem is to fight Nazism without ourselves adopting a system fundamentally indistinguishable from Nazism.

Two Beers

They Won't Intoxicate, Scientific Tests Show

"Just two bottles of beer" has got to be the standard plea of defendants brought into Police Court on charges of driving drunk. But either the cops are inevitably mistaken or most of these defendants are lying.

For scientific tests have established that two bottles of beer do not intoxicate.

Dr. Howard W. Haggard, studying the problem at Yale, has found that alcohol concentration in the blood of up to 0.05 per cent do not produce any of the symptoms of intoxication. That is the equivalent of one highball, one cocktail, or one to one and one-half quarts of beer--i.e., two and one-half to four bottles of beer.

Concentrations higher than that do produce the symptoms of intoxication, and for each multiple of the basic amount, says Dr. Haggard, you ought to wait two hours before driving. That is if you have two cocktails, or the equivalent in beer, you should wait two hours before driving. If three cocktails or their beer equivalent, four hours and so on. Five cocktails call for staying out from behind the steering wheel eight hours.

The whole case of drunken driving calls for scientific tests. Such have been developed, and at least one state, Indiana, has adopted them by law. But there is some doubt as to their compatibility with the Bill of Rights, and moreover they require police departments always to have a medical man at hand--an expense they are reluctant to assume.

His Allies

These Made It Possible For Adolf to Win

If Adolf Hitler wins the war by the end of the week, as does not seem improbable, and is properly grateful, he will erect his greatest monuments to The Sentimentalist Among the Allies and, above all, The American Sentimentalist. For without the aid of these gallant Allies he could hardly have come to victory.

They have been working for him ever since 1918. It was The American Sentimentalist, got up as Woodrow Wilson and four hundred thousand million tearful petitions from American groups who felt that it would be wicked to punish Germany for having been misled by the bad old Kaiser, which balked old Clemenceau and Poincaré of their purpose to put the wolf permanently out of commission.

It was the American Sentimentalist, got up as the Harry Elmer Barnes sort of historian and four hundred million sob-sisters, all lamenting plaintively over how sad it was in dear beautiful Germany now, who confused the American people and made them think that the Treaty of Versailles did need to be destroyed, as that nice man, Mr. Hitler, was doing.

It was The American Sentimentalist who cooked up the idea that it would be perfectly swell to take the best part of the American Navy and the British Navy out to sea and sink them, just by way of showing that we didn't like war. And it was the Sentimentalist Among the Allies who made it possible to win the consent of the British Government.

It was the Sentimentalist Among the Allies who persuaded the British and the French that it was really quite unnecessary to rearm even though nice Mr. Hitler was, since all that one had to do was recognize that he was righting intolerable wrongs--that what was coming out of it all was a New and Brighter World in which Englishmen and Frenchmen could live in brotherly understanding with the gentle Germans. And it was The American Sentimentalist who persuaded the Americans that even though there was a war in Europe, it was none of our business, that we need not arm but only stay at home and mind our own affairs.

They have their reward, these assorted Sentimentalists. Adolf Hitler yesterday let it out that he had chosen the place for the Allies to come and make submission--Munster, where the Treaty of Westphalia was written in 1648. The Treaty of Westphalia, he made it quite plain, was to be undone in toto.

That means that Belgium, Holland, Alsace, Lorraine, Metz, Verdun, Switzerland, French Flanders (the Channel Ports) are all to be incorporated into Germany.

France is to be made a rump state, but it does not matter. France will be ruled by Nazi stooges, in any case. As for Britain, it is to be totally destroyed, save for the island which will be left to the care of Nazi stooges.

Such is the beautiful end to which the labors of the Sentimentalists have at last come. Here, at length, we have a Treaty which will surely settle everything for the next thousand years or so.

There is some comfort in the thought that The Sentimentalists Among the Allies are involved in the universal ruin for which they worked so hard. And there would be comfort in the thought that The American Sentimentalist is going to pay also, if it were not for the fact that all Americans will have to pay with him.

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