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Freedom of speech: Zechariah Chafee and free-speech history.

In 1920, with free-speech issues very much in the news, Zechariah Chafee, Jr., of the Harvard Law School assembled some recently published articles into a book called Freedom of Speech. More than seven decades later, with free-speech issues still in the headlines, Chafee's work remains a principal point of reference in free-speech scholarship. Chafee was a seminal figure--some say the seminal figure--in the development of modern constitutional notions about free speech. His book is arguably the century's most important on the subject; it influenced public officials, inspired generations of scholars, and won for him "a permanent place in the pantheon of civil libertarians."(1)

But although the tide of Chafee's influence has been uncommonly powerful, its wash over the years has not been steady. In turns it has flowed and ebbed, pushed on by the deeper, swirling currents of twentieth-century political thought in the United States.

Historians have typically cast Zechariah Chafee in the role of "Reluctant Libertarian," the monied conservative whose unbending adherence to principle impelled him to break ranks with his social class in order to defend the rights of groups he personally despised. Chafee himself had a hand in scripting this role and in large measure it was factual. He indeed was a blue-blooded New Englander who could trace his Rhode Island ancestry back to Roger Williams. From the day of his birth in 1885, he bathed in the business-class values of a Yankee industrialist. His most powerful lessons along these lines came after his graduation from Brown University in 1907, when he joined the offices of his father's iron foundry. Although he left a few years later to enter the Harvard Law School, his time in the family business left a deep impression. "My people have been business people for generations," Chafee would declare in later years when his free-speech writings stirred murmurs that he was soft on Bolshevism. "I believe in property and I believe in making money."(2)

While all of Chafee's sympathies lay, as he put it, with those who "save, who manage and produce," he nevertheless insisted that his side, the propertied and powerful, "fight fairly." He believed that the most effective way to de-fang radicals was to assure that American institutions actually dispensed the equal justice that they promised--and that they do so as conspicuously as possible. This was the highly constructive brand of antiradicalism that Zechariah Chafee brought to his defense of free speech.(3)

Contributing to Chafee's mystique as the "Reluctant Libertarian" is the appearance that, class interests aside, his intellectual interests lay elsewhere. Prior to America's entry into World War I, indeed, Chafee showed no concern for civil liberties. Joining Harvard's law faculty in 1916, he gravitated not toward the broad sweep of constitutional law but rather toward the detailed minutia of such areas as bills and notes, copyright, and evidence. His love for these and other technical fields would never wane. Long after he had won national acclaim in the area of civil liberties, Chafee continued to insist that as a legal thinker he cared more about bills and notes than the Bill of Rights, and that his principal professional accomplishment was the drafting of the Federal Interpleader Act of 1936, a matter having nothing to do with free speech. It was for his civil liberties work, however, that Chafee would be remembered.(4)

Chafee's engagement with free-speech, like so much First Amendment history, began during World War I. It was then, admirers report, that Chafee "backed into" the free-speech fray "quite by accident."(5) While preparing notes for a course on equity, he came upon a nineteenth-century case involving the suppression of an anticipated libel. That old case sparked an interest in the scores of free-expression cases then moving through the federal courts.

During World War I, leftist and pacifist opponents of the American war effort, indicted under the Espionage Act, argued that their prosecutions violated First Amendment guarantees. Federal judges rejected these defenses and upheld the dissidents' convictions. Chafee had no personal regard for the muzzled activists. (Rare was the one, he suspected, with whom he could share a half-hour's conversation without losing his temper.)(6) But he was strongly opposed to the suppression of dissent and to the judicial decisions that allowed that suppression to continue. Good law, he felt, should be clear, rational, and predictable; it should also be marked by the unassailable appearance of justice. In Chafee's view, the emerging law of free speech, being both fuzzy and repressive, failed on both counts.

Chafee responded as a scholar must: he wrote. The resulting compilation, Freedom of Speech, was unabashedly didactic. One part scholarship, one part legal brief, his book of essays both examined the course of free-speech history and sought to alter it. He aimed it at the nation's trial lawyers. "One of the main purposes of the 1920 book," he recalled later, "was to supply material to lawyers engaged in cases involving free speech."(7) He hoped that lawyers, inspired and instructed by his book, would succeed in persuading judges to liberalize and rationalize First Amendment law.

Chafee's book made rhetorical use of history, stressing the theme of betrayal. Chafee contrasted revered forbearers, who pursued freedom tirelessly, with small-minded moderns, who squandered this hard-won freedom to satisfy capricious tempers. James Madison, Thomas Jefferson, and others had established a national tradition of open discussion; weaker twentieth-century descendants insulted their memory by choking off discussion. Americans should bear this history in mind, Chafee argued, when considering modern free-speech issues.

One of Chafee's main historical inquiries concerned the matter of "seditious libel," an Anglo-American common-law doctrine that enabled governing officials to prosecute bothersome critics for their words alone. In Chafee's telling, a primary aim of the Revolution was to banish the doctrine of seditious libel forever from American shores. The Bill of Rights, adopted in 1791, confirmed this banishment. "The First Amendment," Chafee assured his readers, "was written by men ... who intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America."(8)

From his survey of eighteenth-century constitutional history, Chafee took a giant leap over the nineteenth century and landed amid the controversies surrounding World War I. Justifying this leap, Chafee explained that events in the intervening period had added nothing of substance to the constitutional law of free speech. The small number of American judges who had heard free-expression cases prior to World War I had arrived at their decisions "largely by intuition" rather than by rigorous legal analysis. Furthermore, he wrote, so few in number were these prewar cases that the usual mechanism of common-law rule making--whereby successive judicial rulings fall on either side of a line until the line itself, the legal rule, becomes increasingly distinct--never took place in the area of free speech. In contrast to other, more heavily litigated areas, Chafee concluded, the constitutional law of free expression had not meaningfully evolved since the Republic's founding.(9)

After describing a libertarian eighteenth century and a largely irrelevant nineteenth century for free-speech history, Chafee addressed his present. A libertarian absolutist he was not. He acknowledged that the public safety was a legitimate concern, one to be balanced against the individual and social benefits of open discussion. But he insisted that those benefits, particularly the wisdom that untrammeled discussion would bring to public policy, were substantial. Therefore, he believed, whenever judges weighed free speech against public safety, the former "ought to weigh very heavily" in the balance.(10) To Chafee, this meant fixing the legal boundary of free speech "close to the point where words will give rise to unlawful acts."(11)

Chafee endorsed the famous standard set by Justice Oliver Wendell Holmes, Jr., in March 1919 in Schenck v. United States. According to Holmes, speech could constitutionally be curtailed only when it posed a "clear and present danger" that it would bring about evils that Congress was authorized to prevent.(12) Privately, Chafee worried that Holmes's "clear and present danger" test was insufficiently protective of speech freedoms.(13) In his book, however, Chafee swallowed his reservations, hailed Holmes's wisdom, and urged rigorous adherence to "clear and present danger."

In time, Chafee's free-speech writings would be accepted as near-Gospel. Most first-edition readers, however, were nonbelievers. "The book," declared the New York Times Book Review, "is thoroughly untrustworthy as an analysis of either the law or the facts relating to the subject matter treated."(14) Another reviewer, a specialist in the field of American constitutional history named Edward Corwin, dismissed Chafee's scholarship as "not impressive." Whereas Chafee maintained that the framers of the First Amendment had meant to repudiate the common law of seditious libel, Corwin found it "very improbable that they had entertained any such idea." Corwin further pointed out that individual states had continued to prosecute alleged seditious libels through the end of the eighteenth century and into the nineteenth century, notwithstanding constitutional clauses proclaiming liberty of the press.(15) While not all responses to Chafee's work were so critical (some, indeed, were complimentary), the balance of scholarly opinion was far from enthusiastic.

The public at large accorded the book, and Chafee, an even chillier reception. The most frigid winds blew from the anti-Bolshevik right. By preaching tolerance of dissent during the Red Scare, Chafee had exposed himself to charges of disloyalty. A group of conservative Harvard Law School alumni, with behind-the-scenes help from J. Edgar Hoover and the Justice Department, launched a campaign to have Chafee fired from Harvard on the grounds that his free-speech writings rendered him unfit to continue teaching there. The episode climaxed in a dramatic "Trial at the Harvard Club," during which Chafee's accusers attacked and Chafee defended his scholarship. Only the unwavering support of Harvard president A. Lawrence Lowell, it seems, enabled Chafee to keep his job.(16)

As the embers of the Red Scare cooled, however, Chafee's views on civil liberties appeared less extreme and won increasing acceptance. In the 1920s, a growing number of Americans, irritated by such phenomena as the Palmer Raids, the Scopes "Monkey" trial, and the continued enforcement of the "Comstock Laws" against sexual expression, developed increased regard for free speech and for Chafee. This trend continued into the 1930s. Civil libertarians and New Dealers joined forces and prospered together. At the same time, key members of the nation's generally conservative bench and bar, their reputations badly scarred by their belligerent opposition to New Deal legislation, underwent a timely metamorphosis. Surrendering to the New Deal, they abandoned their staunch defense of property rights and staked out new positions as defenders of civil liberties. (Chafee himself encouraged this shift as a prominent member of the American Bar Association.) A similar transformation occurred within the academy, where once-heated scholarly debates over free-speech history faded. Although a few scholars in the 1930s continued to argue against the civil libertarian view associated with Chafee, by decade's end, Chafee's version was ascendent.

As the United States drifted toward involvement in World War II, Chafee feared a revival of the repression that had swept the homefront during World War I. The time had come, he believed, to publish an updated and expanded version of Freedom of Speech. The new work, Free Speech in the United States (1941), again described the social value of tolerance. Its history of pre-World War free-speech law was an almost word-for-word restatement of the 1920 edition. Again, Chafee argued that: (1) the Founders had banished seditious libel from American law; (2) pre-World War free-speech cases were few in number and contained nothing worth knowing; and (3) Justice Holmes fashioned the valuable "clear and present danger" doctrine in March 1919 with speech-protective ends in mind.

But while the two books' historical arguments were essentially the same, their respective receptions could hardly have differed more. The 1920 edition had provoked profound opposition, especially from those who believed, as one critic at the time wrote, that Chafee attributed "too great a value to a somewhat dangerous degree of freedom of speech."(17) By 1941, with Chafee's old critics in distant retreat, the only audible complaints came from those who believed that his advocacy of speech freedom did not go far enough.(18) On the whole, scholars hailed Chafee's 1941 effort as a "superb piece of craftsmanship," as "the definitive work in its field," and as "the Areopagitica of the present hour."(19) The public reception was equally enthusiastic. While Chafee's first edition had been banned from some public library shelves, his revised edition was construed as a statement of core American values. Indeed, one reviewer recommended Free Speech in the United States as "required reading for every student of law, history, and political science."(20)

Chafee had grown no more brilliant between 1920 and 1941; it was the nation's political culture that had changed. In 1920, the phrase "freedom of speech" had rung in many Red-scared ears as a license for Bolshevik thuggery. By the 1940s, in contrast, "freedom" had become the "keyword of the moment."(21) Speech, press, and other liberties were what distinguished the United States from its adversaries. Yanks rallied to battle under the banner of the "Four Freedoms," the very first of which was freedom of speech; high school kids performed radio plays honoring freedom of expression; libraries led communities in celebrating "Freedom of the Press Week"; free-speech claimants even began persuading judicial majorities. Clearly the winds had shifted since 1920; as the reception of Free Speech in the United States showed, they were now squarely at Chafee's back.(22)

In addition to winning favorable scholarly reviews, Chafee's efforts seemed to be having a positive effect on policy. At times quoting Chafee directly,(23) at other times invoking his historical arguments as "generally accepted beliefs," American officials constructed a legal environment during World War II that was, Japanese Americans excepted, notably open to dissent. The harsh suppression that had accompanied World War I did not recur. Although Chafee was by no means solely responsible for this shift, his contribution was undeniable. "It doesn't fall to many people to fight so hard for an idea they believe in and see their efforts so largely prevail," a Justice Department lawyer wrote Chafee in a 1942 letter regarding the Roosevelt administration's tolerance of wartime dissenters; "I am glad you are one of the few."(24)

The early 1940s, indeed, represent the high-water mark in Zechariah Chafee's long career as a civil libertarian. Later that decade, amid the chilly gusts of the emerging Cold War, his influence receded. Chafee deeply distrusted the crusading zealotry of McCarthyism, judging its proposed cures to be far more threatening to the nation's well-being than the communist diseases it purported to combat. The surest way to triumph over communism, he believed, was to hold fast to "the great American traditions," freedom of thought and speech prominent among them.(25) Chafee backed these words with energetic and, given the circumstances, courageous action. He lobbied strongly though unsuccessfully against the McCarran Internal Security Act of 1950, which required the registration of all Communists and communist groups. He was a leading opponent of loyalty oaths for teachers, lawyers, and other professionals. He actively opposed the persecution of Alger Hiss and several other alleged Communists.(26)

Unsurprisingly, Chafee's activities drew criticism from anticommunist standard-bearers. Senator Joseph McCarthy included Chafee's name on a short list of persons "most dangerous to America," persons whom he, "putting it mildly," considered to be "very, very bad loyalty and security risks."(27) Perhaps even more disturbing to Chafee were the similar if less alarmist attacks that came from fellow scholars who thought him dangerously naive about the communist threat.(28)

The criticism did not deter him. He continued to write and speak his mind on civil liberties. Early in 1957 he used his position as Harvard's first-ever television lecturer to broadcast a series of talks on the value of fundamental human fights. Just days after delivering the final lecture, Zechariah Chafee, Jr., passed away at seventy-one.(29)

If one measures a scholar's impact by adding the number of adherents attracted to the number of opponents provoked, then Chafee's impact has indeed been considerable. During his lifetime, as we have seen, his works on free speech attracted adherents in abundance. (Ernest Angell of the ACLU eulogized Chafee in 1957 as the constitutional historian to whom every draftsman of a brief or essay involving civil liberties turned for background authority.)(30) Since Chafee's death in 1957, his scholarship has proved no less compelling to an increasing number of critics. Given the Cold War and the anticommunist criticism that marked his final years, Chafee could have guessed that attacks on his views would continue after his passing. He might not have guessed, however, that the preponderance of these attacks would come from the liberal left, trampling Chafee, as it were, from the rear.

To date, Chafee revisionism has passed through four phases, about one per decade. The first three addressed one or another of Chafee's "libertarian myths": the myth of the libertarian Framers, the myth of the libertarian Holmes, and the myth of the silent century. The most recent wave of revisionism is more sweeping: it addresses the very foundations of Chafee's free-speech principles.

Chafee revisionism began in the year of his death, 1957, when the Fund for the Republic, a liberal foundation, commissioned Leonard Levy to write a piece on the original understanding of the free-expression clauses of the First Amendment. Levy thought the assignment pointless, for he assumed that Chafee's Free Speech in the United States (1941) had exhausted the subject. The Fund insisted, however, so Levy applied his considerable research energies and his "strong liberal opinions on the First Amendment" to the primary sources. What he found shocked him. The words of the founding generation "flatly contradicted" not only Levy's own liberal preconceptions, but also the views of such free-speech champions as Holmes, Brandeis, and the esteemed Chafee himself. "To my surprise," Levy later recounted, "I discovered that the Framers had a constricted view of the scope of permissible political expression." Most importantly, the Framers, contrary to Chafee's assurances, had failed to repudiate the pernicious doctrine of seditious libel. (Of course, these findings, so shocking to Levy and to his mid-century readers, were well-known to Chafee's first-edition critics in the 1920s.(31)) Levy published his conclusions in 1960 under the title, Legacy of Suppression.(32) Other scholars, inspired by Levy's research, soon began telling their own "tale[s] of systematic suppression" set in the eighteenth century.(33)

About a decade after Levy opened fire on Chafee's eighteenth-century history, other scholars launched a second attack, this one against Chafee's portrayal of Justice Holmes. These scholars focused upon one of Holmes's most famous creations: the "clear and present danger" test for determining when governments may legitimately curtail speech. In March 1919, in Schenck v. United States, the Justice first used this phrase while rejecting a free-speech claim for a unanimous Court. The following November, in Abrams v. United States, he again used the phrase, but this time in dissent and in support of a free-speech claim.(34) Chafee maintained that Holmes was liberal all along. Realizing that he lacked the votes to win a pro-free-speech ruling, however, Holmes had cleverly held his speech-protective views "in abeyance" in the earlier case. Thus he was able to slip the latently liberal phrase "clear and present danger" into a decision that, because it rejected a speech claim, commanded the unanimous approval of the Supreme Court. Consequently, "clear and present danger," having assumed the stature of binding precedent, became available for later use in the protection of speech rights. Holmes, Chafee maintained, was merely "biding his time until the Court should have before it a conviction so clearly wrong as to let him speak out his deepest thoughts about the First Amendment."(35) The Abrams case in 1919 provided Holmes with the opportunity for which he had been waiting. At that point, he unveiled both the speech-protective content of "clear and present danger" and his own true libertarianism. Unable to convince a majority, however, Holmes was forced into dissent, followed only by Justice Brandeis.(36)

Chafee's portrayal of Holmes has not held up. Beginning with Fred Ragan in the 1970s, second-wave revisionists have questioned the continuity that Chafee saw between the repressive Holmes of Schenck, and the libertarian Holmes of Abrams. By giving a liberal spin to "clear and present danger" over the summer of 1919, it turns out, Chafee was among those who sought to enable Holmes and the rest of the post-Schenck Court to change their minds and decide in favor of free speech without having to disown their earlier words. Holmes, we now know, did convert. In Abrams, he dissented in the name of free speech, leaving the conservative majority he had recently headed and taking his retooled "clear and present danger" test with him. Revisionists maintain not only that Chafee the advocate worked originally to effect Holmes's conversion, but also that Chafee the scholar worked subsequently to disguise it.(37)

In the 1980s, a new group of scholars challenged Chafee's conclusion that the period between the late eighteenth century and the early twentieth century was irrelevant to the legal history of free speech in the United States. Alexis Anderson, Margaret Blanchard, and David Rabban were among those who criticized Chafee for deliberately obscuring the pre-World War I history of free speech. As the titles of some of their works indicate, these scholars dedicated themselves to "Filling in the Void" left by Chafee and to reconstructing the story of "The First Amendment in its Forgotten Years."(38)

Third-wave revisionists demonstrated that, contrary to the assertions of Chafee and his disciples, the period prior to World War I produced both a healthy amount of theoretical writing on free speech and a substantial number of free-speech cases in the nation's courts. While many prewar theorists urged robust speech protection, most prewar judges rejected free-speech claims. Chafee, revisionists have shown, incorporated the former and eliminated the latter. With one arm, that is, he embraced liberal prewar theory; with the other, fine advocate that he was, he hung a veil over illiberal prewar cases, hoping to divert attention from precedents hostile to his cause. Only in recent years has the edge of this veil been lifted.

The first three waves of revisionists attacked particular flaws in Chafee's historical writing but did not challenge the general civil libertarian principles that underlay his work. The fourth wave makes that challenge. The recent focus within the scholarly left on issues of race, class, and gender has generated frontal attacks upon Chafee's brand of civil libertarianism. Critics argue that, in a world marked by hierarchy, the supposedly "neutral" principles of modern free-speech law are not neutral at all. Rather, they serve to perpetuate the dominance of the powerful over the powerless: of whites over blacks, of corporations over individuals, of men over women. In other words, critics maintain, modern free-speech doctrines, by prohibiting even the slightest muzzling of dominant groups, enable powerful voices continually to drown out weaker ones.(39)

Mark Graber has addressed this general critique of modern civil libertarianism specifically to Zechariah Chafee, Jr. Graber, whose primary concern is the impact of economic inequality upon the distribution of political power, joins previous revisionists in viewing Chafee as a centrally important framer of the modern First Amendment. He also joins them in accusing Chafee of employing unsavory scholarly means--of having "deliberately manipulated history." Unlike previous critics, however, Graber goes further and criticizes Chafee's ends. Graber argues that the free-speech tradition that Chafee founded has served to perpetuate political inequality by preventing governments from restraining the voices of corporate elite so that others might be heard. By "inventing a mythical tradition" for this sort of across-the-board civil libertarianism, Graber concludes, Chafee "stunted the development" of First Amendment law, leaving it enfeebled and repressive.(40) Graber's portrayal of Chafee bears an odd resemblance to the portrayals drawn by right-wing critics during the Red Scare: Chafee the untrustworthy scholar whose political agenda merits critical scrutiny. By the early 1990s, thus, Chafee criticism had come virtually full circle.

Throughout Zechariah Chafee's long engagement with free speech, he remained consistently concerned with the question posed by the Espionage Act of 1917: to what extent should the state have authority to suppress political ideas? Over the years, Chafee's works have been received with greater or lesser favor depending in some measure upon how readers have answered that question. During the Red Scare, Chafee was read suspiciously by those who considered freedom for political dissenters to be a serious threat to national survival. Mid-century, he was read reverently by those who believed that freedom of expression, more than anything else, set the United States above its adversaries. In recent years, he has been read dismissively by those who consider free-speech concerns of the Espionage Act variety to be basically irrelevant--or worse--to the nation's primary issues: racism, sexism, and economic and political inequality. It is not an inconsiderable achievement that for seven decades, despite all of these shifts, Chafee's work has remained a polestar by which scholars of every school navigate.

Chafee's legacy, however, extends beyond the world of scholarship. His magnetic teaching shaped the minds of generations of Harvard Law Students. His free-speech work powerfully influenced American lawyers and judges. (One federal judge, after handing down a pro-free speech ruling in 1938, went so far as to refer to himself as Chafee's "judicial disciple.")(41) His impact upon federal policy toward domestic dissent during World War II was considerable and, most agree, wholly salutary. More generally, the rights-consciousness that has so powerfully infused American legal culture in the second half of the twentieth century traces an important line of its intellectual genealogy back to Chafee's desk at Harvard.

This record of real-world impact, rare for a scholar, was not accidental. Chafee consciously sought to influence thought beyond the academy. His free-speech books were both intellectually and (at his insistence) financially accessible. He spread his message not only in books and academic journals, but also through the popular media: widely circulating magazines, radio, and even television. He also involved himself in many extracurricular activities on behalf of free speech. Whether signing his name to an amicus brief for the Bill of Rights committee of the American Bar Association, launching a nationwide drive for the repeal of Cold War internal security measures, or serving on the United Nations Subcommission on Freedom of Information and of the Press, Chafee assured that his work was not merely academic.

But if Chafee's record as a scholar-advocate rightly impresses us, his record as a scholar rightly gives us pause. Chafee the activist ordered a custom-tailored historical narrative to fit his public policy agenda; as revisionists have shown, Chafee the scholar delivered. One need not believe in the existence of absolute historical truth to believe that a spectrum of good-faith scholarly accuracy exists, and that Chafee at times veered outside its limits. Chafee's career, thus, illustrates with unusual starkness the tension between present and past that exists in all historical writing. It highlights both the possibilities and the pitfalls of politically engaged scholarship. Chafee misrepresented his nation's past in order to improve its present. The defensibility of such an approach to historical writing is a matter about which today's historians might usefully trouble themselves.

1. Jonathan Prude, "Portrait of a Civil Libertarian: The Faith and Fear of Zechariah Chafee, Jr.," Journal of American History 60 (1973): 638-39; Donald L. Smith, Zechariah Chafee, Jr.: Defender of Liberty and Law (1986), p. 1; Mark DeWolfe Howe, "Zechariah Chafee, Jr.," The Nation 184 (2 March 1957), p. 183.

2. Quoted in Prude, "Portrait," p. 637.

3. Zechariah Chafee, Jr., The Inquiring Mind (1928), p. x; Chafee, "Review of John P. Frey, The Labor Injunction," in Harvard Law Review 36 (1923), p. 503.

4. Erwin N. Griswold, "Zechariah Chafee, Jr.," Harvard Law Review 70 (1957), p. 1337; Edward D. Re, ed., Freedom's Prophet: Selected Writings of Zechariah Chafee, Jr., University Professor, Harvard Law School (1981), pp. xv, 2; Smith, Zechariah Chafee, pp. 1, 272; Harvard Law School Bulletin 9 (1957), p. 2.

5. See Felix Frankfurter, "A Legal Triptych," Harvard Law Review 74 (1961), p. 442.

6. Zechariah Chafee, Jr., Freedom of Speech (1920), p. 2.

7. Zechariah Chafee, Jr., Free Speech in the United States (1941), p. vii.

8. Chafee, Freedom of Speech (1920), pp. 23-24. The suppression of dissent under the Alien and Sedition laws of 1798 was the exception that Chafee believed proved his point, for in attempting to revive sedition doctrines, the Federalists provoked a storm of popular indignation that ended up effectively destroying their own party.

9. Ibid., p. 16.

10. lbid., p. 34.

11. Ibid., p. 39.

12. Schenck v. United States, 249 U.S. 47 (1919).

13. See Smith, Zechariah Chafee, pp. 24, 31-32.

14. Archibald E. Stevenson, "The World War and Freedom of Speech," New York Times Book Review and Magazine (13 February 1921), p. 16.

15. Edward S. Corwin, "Freedom of Speech and Press under the First Amendment: A Resume," Yale Law Journal 30 (1920) at 53, 48 fn. 3, 55.

16. See Peter H. Irons, "'Fighting Fair': Zechariah Chafee, Jr., The Department of Justice, and the 'Trial at the Harvard Club,"' Harvard Law Review 94 (1981), p. 1205.

17. James P. Hall, review of Chafee's Freedom of Speech, Harvard Law Review 34 (1921), p. 693.

18. See Walton Hamilton, American Historical Review 48 (1943), p. 620; and Mark D. Howe, Harvard Law Review 55 (1942), p. 695.

19. See reviews by Arthur J. Goldberg, Illinois Law Review 36 (1941), p. 370; Marvin Comisky, University of Pennsylvania Law Review 90 (1942), p. 636; and R. E. Cushman, American Political Science Review 36 (1942), p. 136.

20. William J. Barron, review, Virginia Law Review 28 (1942), p. 573.

21. Daniel T. Rodgers, Contested Truths: Keywords in American Politics Since Independence (1987), p. 213.

22. George Jennings, "Elijah Lovejoy: A Radio Play about One of Our Four Freedoms," Senior Scholastic (23 March 1942), pp. 17-19, 24; Hiller C. Wellman, "Freedom of the Press Week," Library Journal 69 (15 November 1944), p. 992.

23. C.I.O. v. Hague, 25 F. Supp. 127 at 129 (1938). See also Smith, Zechariah Chafee, pp. 196, 221.

24. Quoted in Smith, Zechariah Chafee, p. 221.

25. Chafee, "Watchman, What of the Night?" address at Brown University, 25 November 1947, in Edward D. Re, ed., Freedom's Prophet, pp. 209-19. See also Chafee, "Spies into Heroes," The Nation 174 (28 June 1952), pp. 618-19.

26. "For McCarran Act Repeal," New York Times, 19 October 1950, pp. 35-36; New York Times, 3 May 1950, p. 1, col. 8; Smith, Zechariah Chafee, pp. 244-62; Claud R. Branch, "Remarks at Memorial Service, 8 February 1957," in Re, ed., Freedom's Prophet, p. 18.

27. 62 American Historical Review 1054 (1957); Smith, Zechariah Chafee, pp. 261-62. See also, "Legion Censures Freedom Agenda," New York Times, 17 July 1955, p. 11, col. 1.

28. Sidney Hook, "Liberalism and the Law: Justice Frankfurter and Professor Chafee," Commentary 23 (January 1957): 46-56; Russell Kirk, review of Chafee's The Blessings of Liberty, University of Pennsylvania Law Review 105 (1956), p. 291.

29. Jonathan Prude, "Portrait of a Civil Libertarian: The Faith and Fear of Zechariah Chafee, Jr.," Journal of American History 60 (1973), p. 633); Smith, Zechariah Chafee, pp. 269-70.

30. Ernest Angell, "Zechariah Chafee, Jr., Individual Freedoms," Harvard Law Review 70 (1957), p. 1341.

31. Besides Edward Corwin's review, cited above, see Abraham Pinsky, "Freedom of Speech under our Constitutions," West Virginia Law Quarterly 31 (1925), p. 280.

32. Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (1960). Levy tells the story of his research and writing in the preface to his Emergence of a Free Press (1985).

33. See, for instance, Winton D. Woods, Jr., "The Suppression of the Press in Early Pennsylvania: The Penumbra of Bayard v. Pasmore," Arizona Law Review 10 (1968), p. 320; Benjamin A. Richards, "The Historical Rationale of the Speech-and-Press Clause of the First Amendment," University of Florida Law Review 21 (1968), p. 203. Debate in this area continues.

34. Abrams v. United States, 250 U.S. 616 (1919).

35. Chafee, Free Speech in the United States, p. 86.

36. Ibid.

37. Fred D. Ragan, "Justice Oliver Wendell Holmes, Jr., Zechariah Chafee, Jr., and the Clear and Present Danger Test for Free Speech: The First Year, 1919," Journal of American History 58 (1971), p. 24. For more on Holmes's free-speech conversion, see Harry Kalven, "Professor Ernst Freund and Debs v. United States," University of Chicago Law Review 40 (1973), p. 235; Gerald Gunther, "Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History," Stanford Law Review 27 (1975), p. 719; David S. Bogen, "The Free Speech Metamorphosis of Mr. Justice Holmes," Hofstra Law Review 11 (1982), p. 97; and Edward Bloustein, "Holmes: His First Amendment Theory and his Pragmatist Bent," Rutgers Law Review 40 (1988), p. 283. See also the thorough accounting offered by David Rabban in "The First Amendment in its Forgotten Years," Yale Law Journal 90 (1981), p. 516, and "The Emergence of Modern First Amendment Doctrine," University of Chicago Law Review 50 (1983), p. 1207.

38. Alexis J. Anderson, "The Formative Period of First Amendment Theory, 1870-1915," American Journal of Legal History 24 (1980), p. 56; Margaret A. Blanchard, "Filling in the Void: Speech and Press in State Courts prior to Gitlow," in Bill F. Chamberlin and Charlene J. Brown, eds., The First Amendment Reconsidered (1982), pp. 14-61; David Rabban, "The First Amendment in its Forgotten Years," Yale Law Journal 90 (1981), p. 516, and "The Emergence of Modern First Amendment Doctrine," University of Chicago Law Review 50 (1983), p. 1207.

39. See, for example, Kenneth Lasson, "Group Libel Versus Free Speech: When Big Brother Should Butt In," Duquesne Law Review 23 (1984), p. 77; William Patton and Randall Bartlett, "Corporate 'Persons' and Freedom of Speech: The Political Impact of Legal Mythology," Wisconsin Law Review (1981), p. 494; Catherine A. McKinnon, "Pornography, Civil Rights and Speech," Civil Rights-Civil Liberties Law Review 20 (1985), p. 1.

40. Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley: University of California Press, 1991).

41. William Clark to Zechariah Chafee, 28 October 1938, quoted in Smith, Zechariah Chafee, p. 196.

John Wertheimer teaches history at Davidson College in North Carolina.
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Publication:Reviews in American History
Date:Jun 1, 1994
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