Forgotten Years Research Articles

The Forgotten Years of Kurdish Nationalism in Iran

Abbas Vali, The Forgotten Years of Kurdish Nationalism in Iran, review by Martin van Bruinessen

White Bureaucracy, Black Community: The Contest Over Local Control of Education In Antebellum Boston

In 1855 the Commonwealth of Massachusetts became the first American State to officially desegregate its public school system. That development (which the U.S. Supreme Court was to cite as a precedent for its landmark: Brown vs. the Board of Education decision of 1954) was principally brought about by the efforts of black community leaders who, in tandem with leading white abolitionists, had begun to attack the city's separate school establishment in the early 1840's. The desegregation effort which culminated in the abolition of separate schools in the State in 1855 has been examined by a good number of scholars. Surprisingly, the ESTABLISHMENT of the separate school system in the state's capital city has never been told. In the years preceding the outbreak of the American Civil War, Boston's Negro population was the largest of any city in the Bay State. This paper describes how and when the separate schools in the city were organized, and the role of blacks themselves in establishing the system of segregated education in the first instance. The account begins at the turn of the century; by the 1840's, when America was swept by its first great Age of Reform, separatism was infefensible on two grounds, principally: it vitiated the propaganda efforts of those seeking to abolish slavery in America and, two, it gave whites a justification to perpetuate caste. But for a full half century Blacks in Boston were educated separately; these forgotten years are narrated in this article.

Elizabeth: The Forgotten Years. By John Guy. Pp. 490. Viking/Penguin/Random House, UK. 2016, $20.83.

Elizabeth: The Forgotten Years. By John Guy. Pp. 490. Viking/Penguin/Random House, UK. 2016, $20.83.

The paediatrician and middle childhood parenting.

The 'forgotten years' of middle childhood, from age 6 to 12, represent a critical period in child development. Emotional, social and physical development during this time have a lifelong impact on health and adult contributions to society. Mental health conditions have displaced physical illness as the leading childhood disability. Positive parenting can improve child behaviour, prevent early-onset conduct problems and provide a buffer from adverse childhood events resulting in decreased toxic stress and improved health. Medical homes can play a key role in supporting parents with positive parenting skills that are practical, evidence-based and useful in everyday life. Paediatricians need to explore the domains that promote healthy development, including caring environments, fundamental needs and nurturing relationships. Our objective is to promote high-quality positive parenting through middle childhood by identifying opportunities for paediatricians to frame parenting discussions in the context of development, behaviour and safety and to provide access to valuable parenting resources.

Needham at the crossroads: history, politics and international science in wartime China (1942-1946).

In 1946, the British biochemist Joseph Needham returned from a four-year stay in China. Needham scholars have considered this visit as a revelatory period that paved the way for his famous book series Science and Civilization in China (SCC). Surprisingly, however, Needham's actual time in China has remained largely unstudied over the last seventy years. As director of the Sino-British Scientific Cooperation Office, Needham travelled throughout Free China to promote cooperation between British and Chinese scientists to contain the Japanese invasion during the Second World War. By rediscovering Needham's peregrinations, this paper re-examines the origins of his fascination for China. First, it contests the widely held idea that this Chinese episode is quite separate and different from Needham's first half-life as a leftist scientist. Second, it demonstrates how the political and philosophical commitments he inherited from the social relations of science movement, and his biochemical research, shaped his interest in China's past. Finally, this paper recounts these forgotten years to reveal their implications for his later pursuits as historian of science and as director of the natural-science division of UNESCO. It highlights how, while in China, Needham co-constituted the philosophical tenets of his scientific programme at UNESCO and the conceptual foundations of his SCC.

Slouching Towards Roth: Obscenity and the Supreme Court, 1945–1957

Slouching Towards Roth-. Obscenity and the Supreme Court, 1945-1957 WHITNEY STRUB Roth v. United States is generally remembered for breaking six decades of Supreme Court silence on obscenity, and rightly so, since when Roth was announced in 1957 the Courthad last substantively weighed in on the issue in 1896. William J. Brennan’s majority opinion in the case offered a notoriously threadbare account of the history of obscenity, sweeping broadly from the colonial era through the Cold War in a few terse sentences and thus leaving Roth a fairly ahistorical opinion.1 But another history haunts Roth', that of its recent past. Though it is fair to say the Court avoided obscenity for much ofthe 20th century, it is more accurate to say it failed to effectively engage with the topic. In the years leading up to Roth, the Court repeatedly found itselfconfronted with cases invoking obscen­ ity, and it never decisively resolved them. The buildup to Roth has gone somewhat under­ examined by historians; accounts of the Stone, Vinson, and early Warren Courts place little emphasis on obscenity, while historians ofobscenity tend to take small interest in the years between 1945 and 1957. When legal scholars do pursue the doctrine into these forgotten years, it is primarily at the lower court level, where much ofRoth's pre-history indeed took shape.2 The lower court influence can be read in Brennan’s doctrine, which held that obscene materials, defined as “utterly without redeem­ ing social importance,” were excluded from First Amendment protection. His Roth test—“whether, to the average person, apply­ ing contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest”—emanat­ ed out ofthe federal courts; his footnote at the end of those conditions cited fourteen cases, all lower courts.3 Supreme Court doctrinal precedent thus played only a minorrole inRoth. Brennan said little about such recent cases as Doubleday v. New York or Winters v. New York, or Samuel Roth’s own earlier failed bid for Court review, in Roth. But he indirectly reflected their impact: a doctrinal quagmire that preceded the actual doctrine. Roth, therefore, while 122 JOURNAL OF SUPREME COURT HISTORY certainly both an attempt to modernize obscenity doctrine and a reaction to the advances of the lower courts, was also an effort to get the Supreme Court past its own, only semi-visible, roadblocks when it came to the question ofsexual expression and the First Amendment. An examination of that hidden backdrop helps illuminate what Brennan sought to avoid in devising Roth. The “intractable obscenity problem,” as it later became known, was already in place well before observers outside the Court fully recognized it.4 The State of the Doctrine No case better crystallized the tensions within midcentury obscenity doctrine than Hannegan v. Esquire, decided by the Court in 1946. It served as an indecisive bellwether of the Court’s disposition. Countering the war­ time tendencies of soldiers to decorate both their barracks and even their weaponry with images of pin-up girls, Postmaster General Frank C. Walker had revoked the secondclass mailing privileges of men’s magazine Esquire for falling into what he called “that obscure and treacherous borderland zone where the average person hesitates to find them technically obscene, but still may see ample proofthat they are morally improper.” Federal appellate judge Thurman Arnold dismissively overturned Walker’s order, scorning the “utter confusion and lack of intelligible standards” on display.5 By the time the case reached the Supreme Court in 1945, new postmaster Robert Hannegan had inherited it. The Court, meanwhile, inherited its own baggage in Hannegan—that of avoidance. Since the passage of the 1873 Comstock Act that had formally codified the criminalization of obscenity at the federal level, much of the legal argumentation had centered on postal authority (vice crusader Anthony Comstock himself had been appointed a special agent through the Post Office, and used that power vigorously through his death in 1915). Though the Court had endorsed postal authority and methods regarding obscenity in a variety of cases from the 1870s to the 1890s, it had less to say about substantive questions of doctrine.6 In 1896, it formally...

Spotlight on middle childhood: Rejuvenating the ‘forgotten years’

Middle childhood, from six to 12 years of age, is often known as the 'forgotten years' of development because most research is focused on early childhood development or adolescent growth. However, middle childhood is rich in potential for cognitive, social, emotional and physical advancements. During this period, the brain is actively undergoing synaptic pruning and, as such, is constantly becoming more refined, a process that is heavily dependent on a child's environment. This discovery opens the door to optimizing the experiences a child needs to provide themselves with a strong foundation for adulthood. The present article reviews the neurological changes that occur in middle childhood, their impact on overall development and how to implement this knowledge to augment a child's capabilities.

Berlin was Home to the First Electronic Studio in the Eastern Bloc: The Forgotten Years of the Research Lab for Inter-disciplinary Problems in Musical Acoustics1

This article describes the development and eventual closing down of the research lab for inter-disciplinary problems in musical acoustics (Forschungslabor für akustisch-musikalische Grenzprobleme) at the Technical Centre for Radio and Television Broadcasting (RFZ) in Berlin-Adlershof. It discusses the design and building of the Subharchord electronic synthesizer, and the situation of that device within the social, economic and aesthetic contexts of the GDR. The instrument is presented as well as the background of the idea of subharmony. Finally, some musical works produced with the Subharchord in the lab are discussed.

The Forgotten Years? New Approaches to Post-War French Society and Politics

The Forgotten Years? New Approaches to Post-War French Society and Politics

The Perfect Storm: Late Nineteenth-Century Chicago Sex Radicals: Moses Harman, Ida Craddock, Alice Stockham and the Comstock Obscenity Laws

On afternoon of New Year's Day 1907 at Masonic Temple in Chicago, Moses Harman, publisher of Lucifer Light Bearer, and newly released prison, received a rousing welcome seven-hundred people gathered greet him. Several speakers vowed join Harman in jail should he face further confinement in his fight against Comstockian misuse of obscenity They asked all assembled take this pledge as well, and almost entire audience rose in solidarity. The seventy-six year old Harman had served part of his prison time at Illinois State Penitentiary in Joliet, breaking rocks for eight-and-a-half hours a day in dead of winter. He contracted bronchitis and spent last part of his ten-month sentence at prison hospital in Leavenworth, Kansas. Many prominent reformers spoke at gathering. Those present also heard letters of support sent by colleagues of Harman unable attend reception.1 Among those who sent letters were two reformers personally involved with Moses Harman. Theodore Schroeder, an attorney and secretary of Free Speech League, wrote that editor's persecution caused him give much thought legal status of our 'freedom of press.' He promised have say in future.2 Dr. Alice Bunker Stockham, a social purity reformer, head of a prosperous Chicago publishing firm, and an internationally known author of works on sexual relations and health, also addressed free issues in her letter. She called for more light - knowledge upon hitherto forbidden topics, and freedom guaranteed by constitution of United States disseminate this knowledge.3 In 1905 Dr. Stockham battled federal obscenity law and lost. Ida Craddock, another social purity reformer and a sex therapist, was missing scene. Rather than face a long prison sentence for defying Act, she committed suicide.4 Moses Harman, Alice B. Stockham, and Ida C. Craddock shared a common vision - they each sought educate public about sexual relations. This discussion will focus on how three came know each other and role they played in struggle publicly discuss sexual matters. Harman's New Year's Day reception offered a rare glimpse of some men and women of time who dared challenge federal and state obscenity laws. The struggle over sexual discourse in Chicago and elsewhere exposed conflict inherent in American Victorian society about both public and private sexual behavior. The social purity movement, which grew out of need of an expanding middle class control sexual conversation and create a single sexual standard, helped frame argument. The organization evolved from local grass-roots origins in 1870s a national, institutionalized and conservative movement in 1890s. In order curb male sexuality, social purists called for laws make prostitution illegal. They endorsed voluntary motherhood, and emphasized women's control of their own bodies. Over time internal tensions developed in movement, since its proponents views regarding sexual relations covered a broad spectrum of beliefs. A number of purity crusaders voiced concerns about growing danger of vicious literature, supporting the suppression of sexual expression in public and confinement of sexuality reproduction.5 In direct response clamping down on sexual discourse, a legal struggle ensued over free issues.6 David M. Rabban writing in Free Speech: in Its Forgotten Years proposes that an extensive and diverse history of free speech existed in America between 1870 and 1920. According Rabban, prior World War I, there was pervasive judicial hostility to virtually all free claims. Libertarian radicals countered by mounting a comprehensive defense demandingbroad protection for almost every expression.7 At center of what became a perfect storm was Comstock Postal Act. …

Dear Medora: Child of Oysterville's Forgotten Years by Sydney Stevens

The reports constitute the bulk of the book. Daily reportsofmorning and afternoon weather and river conditions are listed in tabular form, followed by direct quotes from the various journals and diaries. Most days include at least three observations. Preston chose to use the journal entries as is, without editing punctuation or spelling,which actu ally adds to the charm of the narrative. On November 14, for example, Ordway wrote "the Storm continues, and obledges us to Stay in thisdisagreeable harbour with nothing but pounded Sammon toEat" (p. 313). Most of the time, the journal entries portray very similar weather conditions. Occasionally, however, the reports diverge significantly,as on Friday, April 11, when Lewis, Clark, andOrdway report persistent rain,yetGass merely states"We had a cloudymorning" (p. 381). The last section of thebook isa "Lewis and Clark Trail Pictorial," a seriesofbeautiful pho tos showing landmarks visited and described by the group. Inmost cases, thephotos show pristine landscapeswithout evidence ofhuman habitation, and one can imagine how the same scenery looked to Expedition members. Occasionally, the trappings of civilization are obvious, however, as in the case ofRyan Dam on the Missouri atGreat Falls,which appears inone of thephotos. The appendices contain transcriptsof corre spondence involvingLewis^nd Clark, includ ing lettersto and fromPresident Jefferson, and thebibliography isquite thorough. 'I could not help comparing this book with another one, Lewis & Clark's Northwest Journey: 'WeatherDisagreeable' by George R. Miller (FrankAmato Publications, 2004). As opposed to Preston's referencebook, Miller's is shorter,lessdetailed, andwritten in amuch more prosaic style. Miller's is thekind ofbook you can pick up and read sequentially, and you will learn quite a bit about why the West gets theweather itdoes rather than just seeing the what. But,when itcomes to a comprehensive and well-organized referencebook on theweather encountered by Lewis and Clark, Vernon Preston's stands alone. George Taylor Corvallis, Oregon DEARMEDORA: CHILDOF OYSTERVILLE'SFORGOTTEN YEARS bySydneyStevens Washington State University Press, Pullman, 2007. Illustrations, photographs, maps, index. 180 pages. $24.95 paper. After the funeral,a universal problem comes knocking:what will happen toall thatold stuff ? all those pictures, diaries, letters,albums? The H.A. Espy family who foundedOysterville, Washington, apparently solved this problem by creating a family archive, for, as Sydney Stevens writes in her preface, "when finally gathered together, they [Espy familypapers] filled ninety large cardboard cartons" (p. 3). From those cartons, Stevens, a retired grade school teacher, was given theboxes containing her auntMedora Espy's (1899-1916) adolescent correspondence and diaries: "thousands of Medora letters! Boxes of them ? letterstoand fromfamily members, distant relatives, friends, acquaintances, even strangers" (p. 3). Stevens came to live and write in her grandparents' Oysterville home ? the same rooms where thatarchive ishoused, the same roomswhere Medora, theoldest daughter in a familyof six children, grew up. Dear Medora is, in fact,the second book to use that Espy Family Archive, the firstbeing Oysterville: Roads toGrandpa's Village (C.N. Potter, 1977), a widely praised and reprinted family history byWillard R. Espy,Medora's younger brother, Reader's Digest editor, and author of sixteenbooks. Unlike the scale, style, Reviews 345 gender balance, and narrative complexity of Oysterville, Stevens intentionally limits and focuses her book to"give a picture ofMedora's world as she found it" (p.4). Inher preface and first chapter, Stevens briefly summarizes the Espy family'sbackground and the remote vil lageofOysterville. Then, ineight chapters, she chronicles theEspy family'sexperiencebetween 1908and 1916,foregrounding Medora's coming of-age during that same eightyears (except for a twenty-two-month void between 1909 and 1911). In thefinal chapter, Stevens documents Medora's death shortly afterher seventeenth birthdaybut omits thecause ofher death given inOysterville. In her afterword, the author summarizes thebiographies ofMedora's five siblings, and so completes the frame around one portrait of theEspy family. Readers should know thatDear Medora is composed of two kinds ofmaterials: about half the pages are transcripts and family photographs, and about half are interpretive commentary. In the former, the author weaves together some seventy-eight short lettersby Medora, some eighty-four short lettersby her "Mama" (Helen Richardson 1878-1954), some ninety short transcriptsfromMedora's boy crazy diaries, and over one hundred black and white photographs. To help readers follow...

Childhood on the farm: work, play, and coming of age in the Midwest

As the United States transformed itself from an agricultural to an industrial nation, thousands of young people left farm homes for life in the big city. But even by 1920 the nation s heartland remained predominantly rural and most children in the region were still raised on farms. Pamela Riney-Kehrberg retells their stories, offering glimpses both nostalgic and realistic of a bygone era. As Riney-Kehrberg shows, the experiences of most farm children continued to reflect the traditions of family life and labor, albeit in an age when middle-class urban Americans were beginning to redefine childhood as a time reserved for education and play. She draws upon a wealth of primary sources not only memoirs and diaries but also census data to create a vivid portrait of midwestern farm childhood from the early post Civil War period through the Progressive Era growing pains of industrialization. Those personal accounts resurrect the essential experience of children s work, play, education, family relations, and coming of age from their own perspectives. Steering a middle path between the myth of wholesome farm life and the reality of work that was often extremely dangerous, Riney-Kehrberg shows both the best and the worst that a rural upbringing had to offer midwestern youth a time before mechanization forever changed the rural scene and radio broke the spell of isolation. Down on the farm, truancy was not uncommon and chores were shared across genders. Yet farm children managed to indulge in inventive play much of it homemade to supplement store-bought toys and to get through the long spells between circuses. Filled with insightful personal stories and graced with dozens of highly evocative period photos, Childhood on the Farm is the only general history of midwestern farm children to use narratives written by the children themselves, giving a fresh voice to these forgotten years. Theirs was a way of life that was disappearing even as they lived it, and this book offers new insight into why, even if many rural youngsters became urban and suburban adults, they always maintained some affection for the farm.

David M. Rabban, Free Speech in Its Forgotten Years, Cambridge: Cambridge University Press, 1997. Pp. xi + 404. Price $34.95 (ISBN 0-521-62013-9).

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Free Speech: The Lost Years

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...

Introduction

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. ...

The Clear and Present Danger Test

The Clear and Present Danger Test Douglas Laycock “Clear and present danger” is one of a very few phrases that passed from a Supreme Court opinion into the public imagination and common vocabulary. Just in the week before this article was delivered as a lecture at the Court in October 1999, the wife ofa Presidential candidate said that racism“is a clearandpresentdanger;”1 the Secretary ofthe Air Force warned ofa clear and present danger to the quality ofthe research force at Air Force labs;2 scholarly commentators described a clearand present dangerto the neighbors ofrogue states,3 and ofa credit crisis in EastAsia;4 and a columnist decried the clear and present danger of“the subsidy ideology.”5 The week before that, the President warned about the clear and present danger ofterrorism,6 and a United States Senator denouncedthe clear and present danger ofgun violence.7 The week before that, the New YorkPost reported a clear and present danger to the Mets in the bottom ofthe eighth.8 The phrase has spread around the world to where ever English is written; I found quite recent examples from Toronto,9 Sydney,10 Canberra,11 Jakarta,12 Jerusalem,13 Tel Aviv,14 Ankara,15 and General Santos City, The Philippines, where City Councilor Florentina Congson said that imported fish pose a clear and present danger to the city’s fishing industry.16 All told, I found 1,807 appear­ ances of“clearand present danger” in newspapers and magazines fromthe beginning of 1998 to the week ofthis lecture in October 1999.17 No other phrase coined by the Supreme Court appeared so often.18 “Clearandpresentdanger” appears inthetitle ofeightbooks in my University’s library, on top­ ics from freedom of speech to surging polar ice streams.19 It was the title of a Harrison Ford movie20 based on a Tom Clancy technothriller,21 and no doubt vastly more people learned it from Harrison Ford than from Justice Holmes. But like the less famous authors before him, Clancy chose the phrase in part because it would be fa­ miliar and evocative. “Clear and present dan­ ger” has had an eighty-yearrun as rhetoric and is still going strong as cliche. It had a much shorter run as law. “Clear and present danger” was the dominant standard in free speech cases for only a decade. The phrase meant very different things to different Justices, 162 JOURNAL OF SUPREME COURT HISTORY and even very different things to the same Jus­ tices at slightly different points in time. And it never recovered from its debacle in Dennis v. United States.22 The remarkable true story of the clear and present danger test is well known to scholars in the field, but little known to theAmericanpeople or even to most lawyers. The best account ofthe origins and early years of the phrase is by my colleague David Rabban, in the final chapters of Free Speech in Its Forgotten Years.23 Perhaps the best accountofthe lateryears is by myteacher Harry Kalven in A Worthy Tradition.24 Fully persuadedby theirtelling ofthe basic story, I can add only a few interesting details, some observa­ tions aboutjudicial method, and (in sectionVI) a briefresponse to their principal critic. With re­ spect tojudicial method, I am struck by the irrel­ evance of constitutional text in the early cases, and by the relationship between the clear and present danger test and its successor, the com­ pelling interest test. I. Historical Context The phrase “clear and present danger” origi­ nates in some of the most fundamental of free speech cases, those growing out ofresistance to American policy in World War I. War is always an occasion for dissenting speech and a threat to the freedom ofthat speech. In World War I, cir­ cumstances combinedto produce an unusual de­ gree ofdissent and to make that dissent seem, to government officials, especially threatening. Even for a war, WorldWar I was awful. Tac­ tics failed to adapt to huge advances in the tech­ nology ofkilling, and a generation ofEuropeans died in the long stalemate in the trenches. Some blamed the arms merchants who sold the new technology. President Wilson said it was a war to makethe world safe fordemocracy, but...

David M. Rabban. <italic>Free Speech in Its Forgotten Years</italic>. (Cambridge Historical Studies in American Law and Society.) New York: Cambridge University Press. 1997. Pp. xi, 404. $34.95

Journal Article David M. Rabban. Free Speech in Its Forgotten Years. (Cambridge Historical Studies in American Law and Society.) New York: Cambridge University Press. 1997. Pp. xi, 404. $34.95 Get access Rabban David M.. Free Speech in Its Forgotten Years. (Cambridge Historical Studies in American Law and Society.) New York: Cambridge University Press. 1997. Pp. xi, 404. $34.95. Philippa Strum Philippa Strum Brooklyn College and the Graduate School, City University of New York Search for other works by this author on: Oxford Academic Google Scholar The American Historical Review, Volume 104, Issue 2, April 1999, Pages 593–594, https://doi.org/10.1086/ahr/104.2.593-a Published: 01 April 1999

Free Speech in Its Forgotten Years

Free Speech in Its Forgotten Years

The Revolutionary Communist Party and Flag Burning During Its Forgotten Years, 1974–1989

Origins of the Controversy Since 1989, the American political scene has been convulsed by repeated controversies concerning whether or not “desecrating” the American flag (generally defined as burning or otherwise physically damaging it) should be a criminal offense. The immediate background to these controversies is the 1989 Supreme Court ruling in Texas v. Johnson (subsequently reaffirmed and broadened by the Supreme Court’s 1990 ruling in U.S. v. Eichman), which held that physical flag desecration for the purpose of expressing a political viewpoint is protected under the First Amendment. Ever since these rulings, an organized movement led by the American Legion has sought to amend the Constitution to overrule the Supreme Court and authorize the outlawing of flag desecration. The proposed constitutional amendment was defeated in 1989 and again in 1990 (it received majority backing in both houses of Congress, but not the required two-thirds support required for an amendment). Subsequently it was revived and passed the House by well over the needed two-thirds vote in 1995 and 1997; the proposal failed by three votes in the Senate in 1995 and was never voted on in the Senate before the 105th Congress adjourned, due to crush of other legislative business in late 1998 and especially due to the eclipsing of virtually all other issues in that year by the Monica Lewinsky affair. Amendment backers reintroduced the proposal in early 1999, and as of mid-June were expected to succeed easily once more in the House and were within two votes of victory in the Senate. Since 49 state legislatures have already petitioned Congress to endorse a flag desecration amendment, should Congress pass such an amendment it would almost certainly be ratified by the required three-fourths (38) of the 50 state legislatures and become the firstever change in the First Amendment. The distant origins of the flag desecration controversy date back to the turn of the century, when, in response to pressure from union veterans’ organizations such as the Grand Army of the Republic and hereditary-patriotic organizations such as the Daughters of the American Revolution, the states began to outlaw flag desecration in response to their complaints that advertising, commercial, or otherwise unorthodox use of flags and flag imagery was demeaning the national symbol. Thus, an 1895 pamphlet issued by the proponents of the early movement to ban flag desecration

Free Speech in Its Forgotten Years.

Free Speech in Its Forgotten Years.