CHAFEE, ZECHARIAH, JR. Free Speech in the United States. Pp. xiv, 634. Cam bridge, Mass.: Harvard University Press, 1941. $4.00

• Author: Edward S. Corwin
• DOI: 10.1177/000271624222100125
• Published date: 01 May 1942
• Date: 01 May 1942
• Subject Matter: Articles

192

Book

Department

CHAFEE,

ZECHARIAH,

JR.

Free

Speech

in

the

United

States.

Pp.

xiv,

634.

Cam-

bridge,

Mass.:

Harvard

University

Press,

1941.

$4.00.

Part

I

of

this

volume

(Chaps.

I-VI;

pp.

3-282)

is

a

reissue

with

appropriate

revi-

sion

of

the

author’s

famed

volume

on

Free-

dom

of

Speech,

first

published

in

1920.

Parts

II

and

III

(Chaps.

VII-XII;

pp.

285-493)

are

devoted

largely

to

the

cases

which

have

reached

the

Supreme

Court

since

1925

in

consequence

of

the

holding

in

the

Gitlow

Case

(268

U.

S.

652)

that

the

due

process

clause

of

Amendment

XIV

pro-

tects

freedom

of

speech

and

press

against

abridgment

by

the

states;

but

space

is

also

found

for

a

critical

discussion’

of

the.

Mac-

Intosh

and

Schwimmer

citizenship

cases

and

of

sections

1

and

2

of

the

Alien

Regis-

tration

Act

of

1940.

Part

IV

comprises

two

chapters:

Chapter

XIII,

which

is

a

somewhat

amplified

version

of

Professor

Chafee’s

sketch

of

the

history

of

the

Law

of

Sedition

in

13

Encyclopaedia

of

the

So-

cial

Sciences,

vol.

13;

and

Chapter

XIV

(pp.

517-52),

which

deals

with

&dquo;Methods

of

Controlling

Discussion

in

Peace

Time.&dquo;

Readers

of

Professor

Chafee’s

earlier

vol-

ume

need

hardly

be

reminded

that

his

con-

sideration

of

the

constitutional

question

which

is

raised

by

legislative

restraints

on

freedom

of

speech

emphasizes

two

prin-

ciples :

first,

that

the

Court

is

required

to

draw

the

line

between

two

competing

val-

ues,

that

of

public

order

and

that

of

free-

dom

of

rational

discussion;

second,

that

in

normal

times

the

safe

line

is

furnished

by

the

&dquo;clear

and

present

danger&dquo;

test,

which

means

that,

except

for

blasphemous

and

obscene

utterances,

no

words

should

be

re-

garded

as

constitutionally

prohibitable

un-

less

their

utterance

is

found

by

the

Court

to

have

been

attended

by

&dquo;a

clear

and

pres-

ent

danger&dquo;

of

producing

disorder;

that

is

to

say,

unless

their

utterance

amounted

to

an

incitement

to

disorder

and

hence

would

render

the

utterer

particeps

criminis

in

such

disorder

as

in

fact

occurred.

The

logical,

historical,

and

practical

difficulties

in

the

way

of

this

rule,

Professor

Chafee

seems

to

me

to

wave

aside

rather

unceremoni-

ously.

Nor

do

I

think

his

contention

that

the

Supreme

Court

is

committed

to

it

to

be

beyond

challenge.

If,

for

instance,

Justice

Frankfurter

raised

the

question

in

the

Flag

Salute

Case

(Minersville

School

Dist.

v.

Gobitis,

310

U.

S.

586)

whether

the

refusal

of

a

few

children

of

religious

fanatics

to

salute

the

flag

produced

&dquo;a

clear

and

pres-

ent

danger&dquo;

to

&dquo;national

unity,&dquo;

I

missed

that

feature

of

his

opinion.

Generally,

however,

Professor

Chafee’s

always

generous

intention

is

well

balanced

by

the

sober

good

sense

which,

for

example,

characterizes

his

comment

on

Cantwell

v.

Conn.

(310

U.

S.

296).

Here

the

Court,

only

two

weeks

before

its

Flag

Salute

de-

cision,

asserted

the

constitutional

right

of

religious

cranks

to

go

from

door

to

door

along

a

street

90

per

cent

Catholic

and

play

phonograph

records

attacking

the

Catholic

Church.

&dquo;If,&dquo;

remarks

Professor

Chafee,

&dquo;the

phonograph

and

flag

salute

cases

had

been

decided

in

exactly

the

op-

posite

way

the

combined

results ...

would

give

a

scope

to

religious

liberty

closer ...

to

my

conception

of

the

life

of

the

spirit.&dquo;

Extremely

effective

is

Professor

Chafee’s

criticism

of

sections

1

and

2

of

the

Alien

Registration

Act

of

1940.

As

he

shows,

Congress

by

these

sections

re-enacted

to

all

intents

and

purposes

the

discredited

Espio-

nage

Act

of

1918,

and

did

so,

moreover,

by

subterfuge

and

while

the

country

was

still

at

peace.

Considered

nevertheless

as

war

measures,

these

sections

may

answer

to

a

public

sentiment

that

might

otherwise

ex-

press

itself

in

more

violent

forms.

But

an

emergency

measure

ought

to

be

enforced

as

such,

that

is

to

say,

as

preventive

rather

than

as

punitive

in

intention,

and

the

sen-

tences

imposed

under

it

should

be

governed

by

this

intention.

Of

course,

a

work

of

this

sort

has

to

stop

somewhere.

Nevertheless,

I

regret

Pro-

fessor

Chafee’s

failure

to

comment

on

the

recent

remarkable

extension

by

the

Court

of

freedom

of

speech

to

include

the

right

to

picket.

Taking

a

realistic

view

of

what

the

Court

itself

has

recently

termed

&dquo;ordi-

nary

union

activities,&dquo;

this

development

seems

to

me

to

stretch

the

concept

in

ques-

at SAGE PUBLICATIONS on December 4, 2012ann.sagepub.comDownloaded from