Free speech in its forgotten years.

• Author: Farber, Daniel A.

FREE SPEECH IN ITS FORGOTTEN YEARS. By David M. Rabban.(1) Cambridge University Press. 1997. Pp. xi, 404.

Daniel A. Farber(2)

Rip Van Winkle-like, the First Amendment slumbered from 1800 to 1920. Or so we are accustomed to think. The typical constitutional law book speaks briefly of the origins of the First Amendment, devotes a few paragraphs to the Alien and Sedition Acts, and then leaps a century to the great dissents of Holmes and Brandeis. In the interim, free speech lay dormant as an issue.

That, at least, is the conventional wisdom. As David Rabban and others have shown, however, the conventional wisdom is wrong. It is true that the Supreme Court did not begin vigorously defending freedom of speech until well into the Twentieth century. But free speech was far from being a forgotten issue during the Nineteenth century. Free speech was a rallying cry for the anti-slavery forces which ultimately formed the Republican party, and remained a lively issue during the Civil War.(3) And, as Rabban has demonstrated, free speech continued to find its advocates even during the generally repressive years from the end of Reconstruction through World War I. Much of this period is little remembered today--how many people can name the Presidents from 1870 to 1920, let alone Supreme Court Justices? Yet we cannot expect to fully understand the later, more dramatic developments of the Twentieth century without grasping this background.

With respect to the First Amendment, Rabban can take the primary credit among legal scholars for rediscovering this forgotten period of American law. His book sheds light on this shadowy corner of legal history, in the process raising puzzling questions about nineteenth century constitutional thought. I will first sketch his findings, and then offer some musings about the repressive caselaw of the day.

I

Several parts of Rabban's story are particularly striking. He begins with the saga of the "lost tradition of libertarian radicalism." (p. 23) Much of the ire of these forgotten libertarians was directed at the Comstock Act, which banned "obscene" mailings. The Comstock Act was passed in response to an unsuccessful criminal prosecution under an earlier statute--a prosecution aimed, not at what we would consider today to be pornography, but at a newspaper article alleging that the Reverend Henry Ward Beecher had had an affair with his best friend's wife. (p. 29) The targets of prosecution under the new law included birth control tracts (p. 30); pamphlets attacking marriage as oppressive to women and advocating "free love" (p. 34); advertising for contraceptives (p. 39); and portions of Whitman's Leaves of Grass. (p. 41) In response, the Free Speech League was formed under the leadership of legal scholar Theodore Schroeder. (p. 47) Like the ACLU of today, it defended speech of all kinds, including socialists, sexual libertarians, and others. (p. 48) Thus, Schroeder, with the help of the West Publishing Company, (p. 62) collected cases on advertising, blasphemy, obscenity, treason, and other categories of forbidden speech. (p. 63)

A second arena of free speech controversy involved the Industrial Workers of the World (IWW). The "Wobblies" made a point of using street corners for inflammatory speeches, exploiting the predictable police response as evidence of capitalist repression. (p. 87) The shrewdest police commissioners, in places like Denver and New York City, defused the controversies by protecting the IWW's right to free speech. (p. 101) Other cities allowed speech, but only outside the central business district, which many considered a sufficient opportunity for expression. (pp. 110-16) Thus, as Rabban says, free speech was a live public issue during the late Nineteenth century, "[t]he general public, officials at various levels of government, and even members of the IWW expressed a wide range of views," often in terms "more sophisticated analytically, and more sensitive to free speech concerns, than typical judicial decisions of the period." (p. 128) (I will return to the question of the judicial decisions later.)

Another arena of active debate was legal scholarship. Contrary to the current conventional wisdom, Zechariah Chafee, Jr., did not originate free speech as a topic for scholarship. Rabban discusses the work of five influential earlier scholars--two of them remembered primarily for other reasons today, another who is more obscure (Freund), and two others (Schroeder and Schofield) who are almost entirely forgotten. For instance, Thomas Cooley is usually remembered today (erroneously, according to Paul Carrington(4)), as the apostle of Lochnerism. Actually, even his views on economic regulation were more liberal than that, and he was by nineteenth century standards a strong civil libertarian on speech issues.(5) He advocated broad protection for speech on topics of public concern, stressing that the press is "one of the chief means for the education of the people." (p. 201, see also pp. 197, 205)

Other scholars also spoke out against narrow readings of the First Amendment. Roscoe Pound, the noted legal realist and Dean of the Harvard Law School, opposed the Blackstonian interpretation, which held the First Amendment merely to be a prohibition on prior restraints. (p. 192) Ernst Freund, a law professor at the University of Chicago, argued that advocates of anarchist views were protected by the First Amendment. (p. 198) He also anticipated today's public forum doctrine, rejecting the view of most courts that the government had absolute control of speech on public property. (p. 209) Schroeder, whose work with the Free Speech League was mentioned earlier, inveighed against the obscenity laws. (p. 199) He would have allowed punishment only given "the imminent danger of actual and material injury." (p. 207) Finally, Henry Schofield, a professor at Northwestern, anticipated New York Times v. Sullivan(6) by arguing that the First Amendment abolished seditious libel. (p. 195) (As an aside, it seems to me that it speaks poorly of the legal academy that we have such little memory of our own history, so that even...