Free Speech, "The People's Darling Privilege": Struggles for Freedom of Expression in American History.

By Michael Kent Curtis. Constitutional Conflicts. (Durham, N.C.: Duke University Press, 2000. Pp. xii, 520. $32.95, ISBN 0-8223-2529-2.)

Professor Curtis reports in detail three national struggles for freedom of speech. They arose over the Sedition Act of 1798, the writings of the abolitionists before the Civil War, and the military edicts of the Union government during the Civil War. In each, he finds a paradox: governments refused to protect freedom of speech and press, despite the promises of the American Revolution, the state constitutions created in the Revolution, the U.S. Constitution, and the Bill of Rights. He finds that it was the people themselves and not their representatives who preserved the ideal of free speech in the nineteenth century.

The story of the Sedition Act is familiar. The Federalists decided to destroy the Jeffersonian faction in 1798. The Sedition Act made it a crime to "write, print, utter, or publish ... false, scandalous, and malicious writing[s]" against the federal government, Congress, or President Adams so as to "excite ... hatred" against them (quotations from the original act on p. 63). The Virginia legislature, under the leadership of James Madison, resolved to nullify the Sedition Act as unconstitutional, and Kentucky did likewise. Madison explained the constitutional theory underlying free speech in the report he wrote for the Virginia legislature. In Britain the Parliament was sovereign and the king "could do no wrong," so the government could suppress speech (pp. 95-96). But the people were sovereign in the United States and required free public debate to select their representatives. When prosecutions followed under the act, however, new federal judges rejected unconstitutionality as a defense. The Sedition Act expired after the Federalists lost the election of 1800, and forty years later Congress voted to repay the fine of $1,000 imposed on the first man convicted. Thus the Sedition Act has come to be seen as unconstitutional. All the same, leading legal commentators of the time rejected Madison's theory and supported the power of Congress to punish political speech.

In the 1830s Virginia and the other southern states changed their view of the Constitution entirely over the question of slavery. The slave states rejected any publications within their borders that opposed slavery. They insisted that the free states suppress abolitionist writings on northern soil because they might inflame slaves in the South, and many northern leaders agreed with that position. President Andrew Jackson (a slaveholder himself) even ordered southern postmasters to refuse to deliver abolitionist publications except to those "who ... demand them as subscribers," adding that postmasters should expose subscribers in the public journals as participants in "this wicked plan of exciting the negroes to ... massacre" (p. 156). After mob violence and the murder of a prominent abolitionist, northern opinion changed to support free speech for the abolition movement everywhere in the nation. During the Civil War, however, President Lincoln promulgated new anti-sedition laws, Union generals issued written orders to suppress civilian speech, and military tribunals convicted northern citizens who spoke against the war. Lincoln not only allowed military arrests of northern citizens, but military suppression of newspapers. Yet during the crisis, many radicals opposed free speech for critics of the war and emancipation.

This is more a work of history than of law. Although the author summarizes the reasoning of legislatures and courts that overrode the First Amendment, he does not analyze the unfolding of constitutional doctrines. Curtis seems to accept the absolutist position of Supreme Court Justices Hugo Black and William O. Douglas: The First Amendment says, "Congress shall make no law ... abridging freedom of speech, or of the press," and the phrase "no law" means Congress lacks power to legislate on the subject. But legislate governments have, and this absolutist interpretation of the First Amendment has never commanded a majority of the Supreme Court. Why this is the case presents a question historians may be better placed to answer than lawyers.

At 437 pages of text, the book is too long. The writing suffers from repetition. For example, the author reminds us again and again that the southern states feared that debates over slavery would lead to slave revolts--one time was sufficient to make the point. The chapters also jump around in time and subject. Pruning and redrafting would have improved the book for a wider audience. The story certainly deserves one.

WILLIAM PANNILL
Houston, Texas