The Brandeis gambit: the making of America's 'first freedom,' 1909-1931.

AuthorBobertz, Bradley C.

INTRODUCTION

A little after two o'clock on the sixth afternoon of 1941, Franklin Roosevelt stood at the clerk's desk of the U.S. House of Representatives waiting for the applause to end before delivering one of the most difficult State of the Union Addresses of his presidency.(1) Hitler's armies had swept across Europe the previous year, and the formation of the Axis Pact in September 1940 (linking Japan's fate with that of Germany and Italy) made America's entry into the war "`simply a question of timing.'"(2) Roosevelt planned to use the address as a forum to brace the nation for war,(3) but he faced a dilemma of his own creation. Both he and Wendell Willkie had pledged nonintervention in their bitter 1940 campaign,(4) and Roosevelt now had to find a way of retreating from this promise without either reversing official policy or creating the impression that his neutrality pledge was a ruse.(5) He also needed to persuade a wary public that the war, when it came, would serve a cause important enough to justify the inevitable carnage.(6) Roosevelt had been wrestling with this dilemma for some time, and ultimately he seized on the idea of "four freedoms" universal to all people.(7) He opened the address with a history lesson of sorts on American resolve in wartime and said that the threats facing the country were "unprecedented," a theme he repeated throughout the speech.(8) After calling for higher taxes, increased defense spending, and renewed support for the allied cause, Roosevelt turned to the "four essential human freedoms" that must be defended "everywhere in the world."(9) First among them was freedom of speech.(10)

Roosevelt never explained why free speech, rather than some other aspect of the human condition, was "essential," or why it came first in the hierarchy of freedoms.(11) Perhaps no explanation was necessary. Certainly from the modern perspective, freedom of speech comes quickly to mind as a defining feature of our national character. Americans agree on few values as strongly as the "firstness" of this first freedom. America is a nation of opinions, and its citizens believe with almost religious fervor in the "right" to voice them, as well as in the "rights" of others to have their say, even if we disagree.(12) Yet the centrality of free speech to the American self-image is of comparatively recent vintage. At the end of the nineteenth century, the most remarkable aspect of our "first freedom" was that practically no one talked about it, wrote about it, or sued to enforce it (even under circumstances that would strike the modern mind as raising quintessential "free speech" issues).(13)

This Article seeks to answer two simple but elusive questions: Why did what amounted to a national referendum on the meaning of free speech spring to life as suddenly as it did in the early twentieth century, and why did the issue just as suddenly imbed itself into our collective consciousness so deeply that the theory of speech as a fundamental right ceased to be a matter of serious debate?(14) To put the questions another way, why did the issue of free speech appear so quickly and loudly at a particular historical moment, and, given its disputatious origins, why did it so quickly gain unquestioning allegiance? After an unsuccessful search for historically accurate and persuasive answers to these questions, this project began as a quest for just such an understanding. As the evidence mounted, it became apparent that free speech arrived on the national stage when and how it did because the idea of free speech provided a malleable and culturally resonant solution to the most pressing concerns of the era. Freedom of speech gained its stature, its "firstness," because the people who thought, wrote, and argued about its social and political functions did their jobs with exceptional grace, modesty, and, it must also be said, with the knowledge that they were revising the facts of American constitutional history in a manner that ultimately might conceal the genius of their work. In short, the first freedom was made, not found or "revived," and this Article attempts to explain the details of its making.

Traditional accounts portray the evolution of free speech law in the 1910s and 1920s as a purely intellectual phenomenon. According to this view, a relatively small group of thinkers--led by Supreme Court Justices Oliver Wendell Holmes, Jr. and Louis D. Brandeis, Second Circuit Judge Learned Hand, and Harvard Law Professor Zechariah Chafee, Jr.--developed a protective legal standard for free speech in response to the Espionage Act prosecutions of the First World War.(15) Although some writers acknowledge that other factors played a role in the story,(16) they place a greater emphasis, by far, on the abstract evolution of ideas. But our present way of thinking about free speech did not spring from the foreheads of clever jurists. Ordinary people nurtured it, wrote about it, experimented with it, and argued over it endlessly in dealing with real problems they found urgently in need of resolution.(17) In the critical years of the 1910s and 1920s, even Brandeis and Chafee viewed the question of how to regulate political dissent less as an abstract legal issue than as a question of social engineering.(18) How American democracy would adapt to the challenges posed by militant labor, surging immigration, urban poverty, and the international rise of fascist and Marxist political ideologies became the fundamental issue of the day.(19) Though these concerns were vital at the time, treatises and casebooks on constitutional law barely mention them. It is as though the social milieu from which modern free speech doctrine arose never really existed. The story that one is led to believe is that a few gallant men recognized that censorship was un-American and used the power of their pens to reassert the Founders' conception of freedom. This story is misleading. An examination of the historical record--what people actually were thinking and writing about at the time--shows that the political and social apprehensions of the 1910s and 1920s shaped the development of free speech law far more than scholars have acknowledged.

Section I of this Article begins in Missoula, Montana, in the fall of 1909, where Elizabeth Gurley Flynn and a group of her fellow Wobblies launched their first "free speech fight."(20) The Missoula campaign and the ones that followed in other western cities were designed to overwhelm municipal jails with protesters and thereby force city authorities to allow IWW organizers access to public spaces.(21) A secondary goal was to gain the sympathy and financial support of American liberals by linking the IWW movement with seemingly timeless principles of constitutional liberty.(22) Regardless of which side one supported in the free speech fights (and most people supported the police), observers could not ignore the legal context in which the skirmishes unfolded. If Wobblies were claiming the right to "free speech," what exactly did that right mean? What were the functions and limits of this idea? During the mid-1910s, politicians, industrialists, and law enforcement officials reexamined their methods of dealing with mass dissent.(23) Having witnessed how violence often escalated when police acted with force to round up or disperse protesters, many concluded that overt suppression of dissent was an ineffective means of controlling it.(24) They advocated a more restrained approach, arguing that violent intervention by authorities tended to legitimize the cause of the protesters while making them even more radical, whereas a benevolent disregard of radical speech tended to dissipate its violent impulses.(25)

Section II considers the paradoxical effects of America's entry into the First World War and the stunning success of the domestic propaganda campaign administered by George Creel's Committee on Public Information. To be sure, these developments brought about a reversal in public tolerance for "subversive" dissent, a change that was legally enshrined in the Espionage Act of 1917.(26) At the same time, though, they offered further proof that overt censorship might in the long run strengthen the very ideas it attempted to eradicate.(27) Interestingly, some of the most careful thinking about this problem appears in the files of the attorneys who headed the War Emergency Division of the Department of Justice, which was hastily formed to enforce the federal wartime statutes.(28) What these lawyers thought and wrote about privately contrasts sharply with their public roles as enforcers of federal censorship laws.

In early 1919, the initial constitutional challenges to the Espionage Act reached the Supreme Court.(29) Section III recounts Justice Holmes's efforts to define the meaning of free speech in these cases. In his first three opinions, written for a unanimous Court in March 1919, Holmes advanced a restrictive interpretation of the First Amendment based on the notion that dissent in wartime represented a "clear and present danger" unworthy of legal protection.(30) When the Court was in recess for the summer, however, Holmes reassessed his position.(31) On the train to his summer home the previous year, Holmes happened to encounter Judge Learned Hand, and the two judges had an extended conversation about the appropriate judicial response to free speech claims.(32) Soon after the March decisions were announced, Zechariah Chafee published an article that creatively reinterpreted the "clear and present danger" test to make it seem like a protective legal standard, despite the clear import of the Court's previous rulings.(33) Before the summer was out, Holmes read the article and met with its author.(34) Holmes also followed the events of the Red Scare with increasing concern, as anti-Bolshevik hysteria dominated the headlines.(35) By the time the Court reconvened, Holmes had abandoned his initial approach to free...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT