Introduction

Abstract

Introduction Melvin I. Urofsky Ever since the crack-up of communism in the 1980s, there has been an almost feverish interest in the American Constitution overseas, especially in those countries emerging from under the thumb of the Soviet Union. Within the Constitution no section draws more interest than the Bill of Rights, and there the greatest object of curiosity, veneration and awe is the FirstAmendment with its guarantees offreedom of expression. But the First Amendment Speech Clause, which is the focus of this issue and the subject ofa series oflectures at the Court in 1999 spon­ sored by the Society, also confuses many foreigners. While those for whom free speech has been a dream yearn to be able to say what they want, many also believe that there are limits—even in a free society—to what one may say. In Australia, for example, the rules oflibel still reflect nineteenth-century English custom, and a majority of libel suits in Australian courts are filed by government officials against newspapers who have been critical of their performance in office. When I lectured on American rights in eastern Europe forthe United States InformationAgency, I could always count on a good discussion about the limits of free speech. Much as my audiences envied American freedoms, they had a sense of communal order that supported restrictions on that very speech. In this issue we get both a historical and a contemporary sense of how the jurisprudence offree speech has evolved in this country. Most constitutional law professors startwith the 1919 Holmes opinions in Schenck and Abrams, and then jump to the great exposition by Brandeis in Whitney v. California. Butrecent scholarship argues that we need to go back further in our history if we really want to understand the First Amendment. Murray Dry looks at the infamous Alien and Sedition laws of the late eighteenth century to start our historical journey, and David M. Rabban, whose articles and books have been suggesting earlier antecedents than the World War I cases, looks at what he has called “the forgotten years.” Students offree speech all learn ofthe clear and present danger test and, truth be told, that may be all they learn. It is often unclear if they really understand it. In these pages, Douglas Laycock takes us on an illuminating tour ofone of the most famous constitutional tests ever enunciated. But what of the present? Is clear and present danger still a viable test? Departing from the standard lecture format, the Society invited a panel, moderated by Kenneth Tollett, to discuss that question. The introductory remarks of the panelists, Walter Berns and Philippa Strum, are published here. They serve as a useful preface to Lilian R. BeVier’s survey of free expression during the Warren Court and Burger Court eras. On a personal note, I had ProfessorBeVier as a professor when I attended the University of Virginia Law School, and while she and I frequently disagreed, I always found her views, especially on the First Amendment, challenging. Let me take this space to thank her for helping me focus my own thoughts on the issue. ...