Free Speech in Its Forgotten Years.

• Date: 22 June 1998
• Author: Preston, Jr., William
• Published date: 22 June 1998
• Author: Preston, Jr., William

David M. Rabban, New York: Cambridge University Press, 1997.

In 1927 Leon Whipple published the story of civil liberty in the United States, the first attempt to describe the historical role of freedom from the American Revolution to 1920. In his foreword, Whipple wrote that "this book was born out of war and ignorance." A generation that had just confronted wartime repression and a postwar Red Scare thought there was a tradition of liberty to which they could appeal. Whipple, instead, pointed out that there were as many precedents for intolerance as for liberty (Whipple, 1952: v). Even though the DaCapo Press reissued The Story of Civil Liberty in 1952 during the height of McCarthyism, its message has strangely failed to influence interpretations of the events before and after World War I. Neither has anyone attempted to write a similar full account of the role of rights throughout the nation's history.

With the appearance of David Rabban's Free Speech in Its Forgotten Years, that deficiency has been addressed for the years 1870 to 1920 and a long lost history has been recovered. Rabban has discovered the previously unknown origins of free speech controversies, litigation, and judicial decisions, found new arenas of advocacy and legal philosophy dealing with First Amendment issues, revised our understanding of Progressivism and its attitudes toward free speech and dissent, and reinterpreted the dynamics that influenced the Supreme Court's wartime decisions on free speech. All in all, this is a major contribution based on vast and meticulous research.

Rabban's aim is to trace the evolution of "rights consciousness," basically a history of ideas about free speech and the First Amendment "in their diversity, complexity, and transformations" (p. 20). Two major traditions dominated this debate. On one side, the federal and mostly the state judiciary remained hostile to free speech, greatly restricting its expression due to the "bad and remote tendency" it might have to affect adversely public safety, health, morals, or convenience. In opposition was a mixed bag of "libertarian radicals" who "defended the primary value of individual autonomy against the power of church and state" and, therefore, interpreted First Amendment rights in the most protective sense (p. 23). Organized in the National Defense Association (1878) and the Free Speech League (1902), they challenged the many censorship attacks of the infamous Comstock Law (1873) against supposed immoral speech and publications, supported the free speech of organized labor and numerous radicals, and opposed the use of libel, contempt, and injunction doctrines to criminalize speech.

Meanwhile, a cadre of legal scholars independently began to formulate alternative interpretations of the First Amendment that would provide more protection to free speech claimants. Theodore Schroeder, Thomas Cooley, Ernst Freund, Henry Schofield, and Roscoe Pound condemned the "bad tendency" test even though their own social theories diverged on where the line between individual and social interests should be drawn. Had these legal philosophies not become part of the contemporary "rights conscious" climate, the succeeding debates of the Progressive era and the war would not have taken the direction they did.

In Rabban's view, the significance of the prewar decades lies in the contested terrain between the two extremes of judicial hostility and radical libertarian opposition. The former, of course, won hands down in case after case. Yet losers can become winners if their advocacy over time infiltrates the dominant paradigm under more favorable circumstances. Free speech proponents were an elite minority, yet their advocacy, litigation, publicity, and legal stature and connections did transform consciousness, as the Progressives were to prove.

Civil liberties and excessive individualism were not top priorities on the Progressive political agenda, as Rabban points out in a brilliant chapter on their social thought. Although they attacked corporate malefactors' systematized exploitation of workers and the unjust distribution of wealth, they regarded this predatory behavior as individualism running amok under the legal protection of the Fourteenth Amendment and liberty of contract. Their solutions proposed reform under a state whose beneficent powers would repair the damage and restore an equitable harmony of interests to the affected community, a sort of fairness doctrine for the general welfare.

The "Best and the Brightest," however, do not...