Free Speech: The Lost Years

Abstract

Free Speech: The Lost Years David M. Rabban In this essay, I intend to cover three basic topics. First, I will explain how I became inter­ ested in the history offree speech in the United States before World War I. Second, I will present an overview ofmy unexpected discoveries about this history in the years between the Civil War and World War I. Finally, I will conclude by pointing out what I perceive to be some striking similarities between the analysis offree speech before World War I and significant current criti­ cisms of First Amendment decisions by the Supreme Court since the 1970s. My interest in free speech before WorldWar I first developedwhile I was a student at Stanford Law School between 1971 and 1974. During my three years at Stanford, I took general survey courses in constitutional law and American legal history, advanced courses in constitutional law, and seminars in constitutional history and free speech. As I completed these classes, I increas­ ingly was struck by the common, though largely unarticulated, assumption that no significant legal interpretation of free speech had occurred between 1801, when the Sedition Act of 1798 expired, and 1917, when Congress passed the Espionage Act soon after the United States en­ teredWorldWar I. Scholars typically viewed Justice Holmes’ 1919 decision in Schenckv. United States' as the Supreme Court’s initial confrontation with the meaning offree speech, and “Free­ dom of Speech in War Time,”2 published three months later by Professor Zechariah Chafee, Jr., as the earliest major law review article dealing with the subject. They similarly regarded the American Civil Liberties Union (ACLU), founded in 1920, as the first significant organization devoted to defending freedom of expression. Many perceived the legal history of free speech since World War I primarily as the development of a “worthy tradition”3 of protection for un­ popular speech, begun by the famous, mostly dissenting, opinions ofJustices Holmes and Brandeis from 1919 through the 1920s, and reaching fruition in a series of landmark decisions by the liberal Supreme Court in the 1960s and early 1970s. 146 JOURNAL OF SUPREME COURT HISTORY By the end ofmy third year oflaw school, I questioned the assumed absence of legal dis­ putes over free speech during the long period between 1800 and 1917. The social unrest of the late nineteenth and early twentieth centu­ ries—the years immediately before the sup­ posed beginning ofFirstAmendmentjurispru­ dence—seemed especially likely to have pro­ duced debate and litigation about free speech. Just in the decades immediately before 1917,1 suspected, agitation by workers, anarchists, and advocates of birth control tested the meaning of free speech. My hunch proved correct, and my recent book, Free Speech in Its Forgotten Years (Cambridge University Press, 1997), is the re­ sult. An enormous variety ofcases at all levels of the judicial system refutes the widespread assumption that litigation over free speech be­ gan abruptly with prosecutions under the Es­ pionage Act of 1917. These cases, however, have been obscured ever since Chafee mini­ mized and mischaracterized them in his 1919 article, “Freedom ofSpeech in WarTime.”4 Re­ lying uncritically on Chafee, subsequent schol­ ars have not independently examined the pre­ war period. They exceed even Chafee in their neglect of the substantial litigation over free speech before World War I. For example, no major casebook on constitutional law includes a single decision before 1917 in its section on freedom of expression.5 Only a few scholars have tried to explain the assumed absence ofearlierjudicial encoun­ ters with free speech issues. Like most people interestedin constitutional matters, these schol­ ars think mostly about the federal courts, par­ ticularly the Supreme Court. As a result, they have focused on possible factors limiting fed­ eral jurisdiction. The text ofthe First Amend­ ment prohibits only Congress from abridging free speech. Some have asserted that the Sedi­ tion Act of 1798, which expired in 1801, was the only federal legislation before the Espio­ nage Act of 1917 that posed significant threats to free speech. An important Supreme Court decision in 1812 held that federal courts did not have jurisdiction over common-law crimes,6 thereby reducing their exposure to free speech issues. The ratificationofthe Fourteenth...