The First Amendment's New Standard History

Abstract

The First Amendment’s New Standard History Stephen A. Siegel (bio) David M. Rabban. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997. xi + 404 pp. Notes, pictures, and index. $34.95. The standard history of free speech in America is that nothing significant occurred between 1801, when the Sedition Act of 1798 expired, and 1917, when Congress enacted the Espionage Act to suppress opposition to America’s entry into the First World War. David Rabban’s study of the First Amendment in American law and culture between the 1870s and the 1920s thoroughly undermines this view. By canvassing various free speech controversies over the course of half a century, analyzing the legal system’s response to them, and probing the philosophical underpinnings of that response, Rabban presents a new paradigm for the development of our First Amendment freedoms. Rabban’s thesis is that prior to WW I there were numerous controversies eliciting social debate and judicial application of free speech principles. These controversies show, on the one hand, that throughout the fifty year period prior to WW I, America’s dominant culture was fairly speech repressive. On the other hand, these controversies show the emergence of a “libertarian radical” subculture that denied government power to proscribe speech on any subject (p. 3). Rabban’s claim is that after WW I, the dominant culture became more protective of speech, but never to the extent of the prewar libertarians. Influenced by Progressive Era social thought emphasizing the importance of the interchange of ideas for democratic self-government, postwar changes in First Amendment freedoms focused on protecting political speech, not speech generally. We are not aware of these changes, Rabban writes, because part of the Progressives’ campaign to establish broader protections for political speech involved denying the existence of both aspects of the prewar tradition. The Progressives’ strategic denial of that multifaceted tradition was so successful that it eventually became the standard history of free speech. In the first four chapters, Rabban demonstrates his views on First Amendment freedoms before WW I through a study of the prosecution and defense of Gilded Age and Progressive Era sex, labor, and political radicals. He also [End Page 743] canvasses laws regulating political campaigns and public speaking, as well as litigation over libel, slander, and contempt of court. Gilded Age and Progressive Era sex radicals included advocates of free love, gender equality, and birth control. Labor and political radicals included advocates of syndicalism and anarchism. In the fifty years between 1870 and 1920, the national, state, and local governments routinely prosecuted these radicals for their speeches and writings. The national government prosecuted proponents of increased sexual freedom under the Comstock Act of 1873 which banned “obscene” material from the mail. Successful prosecutions under the Act included the suppression of Medical Common Sense, the most popular medical text of its time, because of its discussion of contraceptive methods and devices. Under the act, postal officials also censored Margaret Sanger’s discussion of venereal disease in a newspaper column entitled “What Every Girl Should Know.” State and local governments imprisoned advocates of anarchism and syndicalism under a variety of laws, and the national government frequently deported them under provisions of the Alien Immigration Act, enacted in 1903 in response to President McKinley’s assassination. Imprisonment and deportation were imposed for discussions of anarchism and syndicalism devoid of any incitement to violent action. As Rabban’s study of the Industrial Workers of the World speech fights shows, advocates of politically unpopular causes were regularly arrested before they even had begun to speak, sometimes merely for setting their soap boxes on what we today would consider public fora. Mainstream political expression was subject to the same panoply of repressive laws, as Thomas Patterson, United States senator from Colorado and editor of Rocky Mountain News, discovered when he published a series of articles criticizing the Colorado Supreme Court for a decision invalidating Denver’s home rule powers. Patterson was fined $1,000 for criminal contempt of court in a proceeding that did not allow him to prove truth as a defense. Not only did the offended Colorado Court uphold his conviction, but so did the United States...