Zechariah Chafee, Jr., Defender of Liberty and Law. by Donald L. Smith

• Publication year: 1987
• Citation: Vol. 11 No. 02

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 11, No. 2WINTER 1988

BOOK REVIEW

Zechariah Chafee, Jr., Defender of Liberty and Law. By Donald L. Smith(fn*)

Cambridge, MA: Harvard University Press, 1986. Pp. 355

Reviewed by Lynne Wilson(fn*)

Chafee, Equity, and Free Speech Theory

When I am loafing around on my boat, or taking an inordinately large number of strokes on the golf course, I occasionally think of these poor devils who won't be out for five or ten years and want to do a bit to make the weight of society a little less heavy on them.

-Zechariah Chafee, Jr., referring to jailed members of the Industrial Workers of the World, 1923.(fn1)

I. Introduction

Zechariah Chafee, Jr., once achieved the singular distinction of being named to Senator Joseph McCarthy's list of seven persons "most dangerous to the United States."(fn2) It is difficult to imagine a more unlikely candidate for the honor. Born in 1885 into a family of wealthy Rhode Island industrialists,(fn3) a Harvard law professor at age 30,(fn4) and an author of textbooks on equity and the federal Interpleader Act,(fn5) Zechariah Chafee, Jr., led a patrician's life. His closest brush with political extremism was his membership in the Providence "Radical Club," a sponsor of lectures on topics such as oleomargarine legislation.(fn6)

If Chafee seemed dangerous to McCarthy, the danger stemmed from Chafee's vigorous defense of those more radical than he. His commitment to free speech law and scholarship, particularly his outspoken defense of political radicals during World War I,(fn7) made Chafee famous. Without his classic 1920 book, Freedom of Speech, however, Chafee might have only merited a long footnote in legal history. With it, Chafee established himself as both "the nation's first great scholar of free speech,"(fn8) and incidentally as the object of a voluminous FBI file by which J. Edgar Hoover followed his movements for almost 40 years.(fn9)

Based in part on excerpts from Hoover's file, Professor Donald Smith's biography, Zechariah Chafee, Jr., Defender of Liberty and Law, chronicles Chafee's remarkable life with a thoroughness and respect that verges on, but fortunately never crosses over into, awe. It is a well-written and meticulously researched book. Smith focuses primarily on Chafee's public life, but also addresses Chafee's darker family life, addressing the latter with sensitivity. He includes, for example, descriptions of both Chafee's and his wife's nervous breakdowns, and his son's suicide, handling each in a compassionate, rather than lurid, manner.(fn10) Some of Smith's chapters deal, of necessity, with relatively dry topics such as the Interpleader Act.(fn11) But Smith's fluid, lively writing style, and his obvious affection for his subject, make for overall fascinating reading.

Professor Smith goes beyond a mere narrative of Chafee's life, however, and occasionally flounders in the attempt. Smith's personal interest in journalism and press freedoms(fn12) is reflected in the chapters he devotes to Chafee's significant contributions in these areas. As a result, the two chapters dealing with Chafee's "Public Service Theory of the Press"(fn13) and his work on the United Nations' Subcommission on Freedom of Information and of the Press(fn14) are insightful and interesting. But when Professor Smith ventures into an analysis of Chafee's free speech "balancing jurisprudence," the result is, in many respects, unsatisfying.(fn15)

Zechariah Chafee, Jr., was first and foremost an equity specialist. He neither studied nor taught constitutional law at Harvard.(fn16) Chafee's efforts, however, served as the primary catalyst in the Supreme Court's adoption of "clear and present danger" as a test for determining when speech falls outside the protection of the first amendment.(fn17) He did so on the basis of a balancing technique that for the most part ignored the sensitive political values and relationships that the first amendment embodies.(fn18)

Smith makes much of Chafee's promotion of balancing as a panacea for most legal problems, and early in the book he recognizes that since Chafee "formulated no general philosophy of law," interest balancing filled the void.(fn19) Smith claims that this reliance on balancing simply reflects Chafee's conservative personality and "the age in which he lived."(fn20) What is unsatisfying about this approach is that Smith opens, but never examines, the implications that Chafee's almost mechanical reliance on balancing had on the "clear and present danger" test and the form of free speech balancing it represents.

The purpose of this book review is not to show that this void necessarily stems from a flaw in Professor Smith's analysis. Smith makes no pretense of being an attorney, and his book is, after all, a biography and not a treatise. Rather, this review's purpose is to fill the void in Professor Smith's book by proposing that the central problem with Chafee's free speech ideas, and perhaps one problem with the "clear and present danger" test itself, lies in Chafee's reliance on common law and equity balancing concepts, rather than political theory.

II. Chafee, Equity, and the Roots of the "Clear and Present Danger" Test

One summer afternoon in 1919, Chafee sat down with Justice Oliver Wendell Holmes, Jr., over tea. On the table for discussion was the first amendment defense being raised by radicals in the Espionage Act cases then reaching the Supreme Court.(fn21) Chafee came to Holmes on a crusade to lessen the harsh sentences being imposed on those who spoke out against World War I, those who in Chafee's words, "start life with less money and get a little angrier and a little more extreme."(fn22)

Holmes came to tea fresh from his majority opinion in Schenck v. U.S.,(fn23) which contains the original "clear and present danger" language.(fn24) Chafee clearly wanted the somewhat indifferent Holmes(fn25) to lift "clear and present danger" from the level of a passing observation, to a test that could be given to juries whenever a defendant raised a first amendment defense.(fn26) Chafee wanted each case to rest, as in the common law of criminal attempts, on a factual finding that the words or expressions used either did or did not create a "clear and present danger" of producing an unlawful overt act.(fn27)

Holmes at first told Chafee that he did "not think it possible to draw any limit to the first amendment."(fn28) His dissenting opinion in Abrams v. U.S., a few months later, however, shows that he soon yielded to Chafee's call for a more protective free speech position.(fn29)

Chafee, a Harvard equity professor, entered the world of World War I radical free speech by accident. His love of equity, with its flexibility and concern for individual fairness, initially drew him to the first amendment. While preparing a third year equity course at Harvard in 1916, Chafee encountered his first free speech case, Brandreth v. Lance.(fn30) With his curiosity piqued, Chafee proceeded to read the existing cases on prior restraint and free speech limitations. When the Espionage and Sedition Act cases began reaching the federal courts, Harold Laski, then visiting professor at Harvard, suggested that Chafee write an article on the subject for The New Republic. The article appeared as "Freedom of Speech" in the November 16, 1918 issue; a shorter version of his later law review article, "Freedom of Speech in War Time."(fn31)

As free speech theorists go, Zechariah Chafee, Jr., was out of the ordinary. He relied on criminal law and on equity balancing concepts, which suggests that he had no constitutional theory at all. He premised all of his free speech arguments on the basic equity concept that only interests, and not rights, could be balanced.(fn32) He emphasized, as Smith notes, that it was "useless to try to define free speech in terms of rights."(fn33) In doing so, Chafee chose to neglect the political theories of limited governmental power and inherent individual rights on which the Constitution, and specifically, the Bill of Rights are founded.(fn34)

III. Law as Equity, Equity as Theory

Smith aptly titles the prologue to Zechariah Chafee, Jr., Defender of Liberty and Law, "The Reluctant Civil Libertarian." For although Felix Frankfurter assessed Chafee's influence in the field of civil rights as having " 'no match in the legal professoriate,' "(fn35) Chafee, according to Smith, once said that he originally possessed "no enthusiasm or even interest in the importance of free speech," that it was "an acquired taste like olives."(fn36) Further, his legal interests and passions centered for his entire life on commercial, not constitutional, law: he often stated that he cared more about Bills and Notes than about free speech.(fn37)

Equity was Chafee's greatest love as a teacher, and his equity courses at Harvard were those for which he is most remembered.(fn38) Some experts, notes Smith, argue that Chafee's contributions to equity scholarship surpass his free speech work.(fn39) Equitable remedies, such as injunctions, appealed to Chafee's belief that the law should be flexible in its response to varied and changing human activities.(fn40)

Smith acknowledges, as noted above, that Chafee originally ventured into free speech law through "his teaching of the venerable subject of equity,"(fn41) and he also focuses repeatedly on how...