Untangling the Radical Roots of America's Civil Liberties Settlement: Causation, Compromise, and The Taming of Free Speech

Abstract

This essay is a response to commentary by Amnon Reichman and Mark Graber on The Taming of Free Speech for a symposium in the Jerusalem Review of Legal Studies. It addresses their observations that the interwar civil liberties campaign was shaped by events outside the circles of lawyers and activists I explore in the book, and it takes up their invitations to link the history of free speech more explicitly to developments in the wider field of civil liberties advocacy. It pursues their questions by reference to two historical developments that were omitted, for reasons of space and thematic coherence, from my final manuscript: the Sacco and Vanzetti affair, and the ACLU’s debate over its defense of Nazi speech. Both stories link the ACLU’s First Amendment strategy to developments abroad. Both also highlight the very real alternatives to the modern First Amendment that advocates proposed and defended. These controversies and others cast doubt on an overly deterministic account of the ascendance in the United States of the modern First Amendment, if not the survival of judicial review. By extension, they also illuminate connections between the ACLU’s litigation strategy and the recent weaponization of the First Amendment, as well as the usefulness of discarded alternatives in our own historical moment.