The first amendment planted the seeds of freedom of worship, freedom of speech and the press, and freedom of peaceful assembly into the United States Constitution. But it took a long line of judicial decisions to firmly root them in constitutional law.
The courts early recognized some limitations on free speech; as an example, Mr. Justice Holmes put it this way:
"The most stringent protection of free speech would not protect a man in falsely shouting 'fire' in a theater and causing a panic."
And, of course, there are laws of libel and slander to make certain that liberty of language is not license.
But as Mr. Justice Holmes also said of free speech:
"The question in each case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent."
Holmes was the father of the "clear and present danger" doctrine—a philosophy of the widest possible latitude in the interests of liberty. This doctrine has since his time guided our courts in decisions bearing upon free speech and a free press.
All of this is endangered if we ratify as a treaty this covenant on human rights. For if ratified by the Senate, it will become the law of the land, and may be held even to override the Constitution by the courts.
An American Bar Association committee, which had this covenant under study since its inception points out:
"Free speech and a free press are not in express terms guaranteed by our Constitution. It is only provided that Congress and the States may not pass laws impairing these rights; there is no similar express restriction on the Senate and the President in making, ratifying, and approving treaties."
The United States Supreme Court already has held:
That the treaty-making power extends to all proper subjects of negotiation between our Government and other nations; and
That the treaty-making power is not subject to limitations imposed by the Constitution on the power of Congress to enact legislation.
If the Senate ratifies the covenant on human rights and the Supreme Court upholds it under the established principles outlined above, freedom of speech, freedom of the press, and freedom of peaceful assembly may be destroyed by our own Government at any time by an official proclamation of a state of emergency. The covenant contains that power.