A New Story of Civil Liberty in the United States
205
A New Story of Civil Liberty
In the United States
William Preston, Jr.
David M. Rabban, Free Speech in Its Forgotten Years. New York: Cambridge University
Press, 1997.
I
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,
N
WILLIAM PRESTON, JR. (Box 1868, Vineyard Haven, MA 02568) is Professor Emeritus of History, John
Jay College of Criminal Justice. He was a founding member of the Organization of American
Historians’ committee on freedom of information.
Social Justice Vol. 25, No. 2
205
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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 necessarily welcome other
advocates in the pursuit of their ideals. In Rabban’s analysis of John Dewey and
Herbert Croly as representative spokesmen, individualism from below can seem
as dangerous as that from above. Their elitism seemed to announce “do it our way
or else.” Listen to Rabban’s comment on Dewey: “He revealed substantial
hostility to behavior that did not ultimately contribute to a harmonious community” and “advocated extensive social pressure on people whose values or
characteristics did not benefit society” (p. 228).
In his The Promise of American Life, Herbert Croly seemed equally apt in
discovering philosophic versions of the bad tendency test. As Rabban notes,
“Croly devoted substantial attention to the ways in which the American legal
system, particularly the constitutional system of individual rights, obstructed the
A New Story of Civil Liberty in the United States
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development of a progressive democracy.” It would be best that “patriotic but
inferior people” be led by “able and aggressive leaders” (p. 232–233). Both Dewey
and Croly thus concluded that “the amount of liberty which can be left to the
individual without endangering the social interest will vary at different times” (p.
242). California Progressives exemplified the potential for repression in such
reasoning when confronted by the Industrial Workers of the World (IWW)
organizing drives in the fruit, ranching, and farming industries of that state before
the war (Preston, 1994: 55–61).
Dazzled by their conviction that a progressive United States would have the
power to reform the world by its entry into the war, Progressives had little
sympathy for pacifists, conscientious objectors, and other radical dissenters. In its
Espionage and Selective Service Acts decisions, the Supreme Court was not ready
to abandon bad tendency either, and that included Justices Oliver Wendell
Holmes, Jr., and Louis D. Brandeis. Congress and the trial juries, of course, saw
“verbal acts” as incitements to crime, and public apprehension confirmed the
remotest possible impact of speech as intended to bring about the prohibited
results. Only Learned Hand in his decision in the Masses case (declared nonmailable under the Espionage Act) resisted the tendencies doctrine and believed
speech was legal unless it directly advocated incitement to crime, as distinguished
from agitation, however intemperate.
In traditional historiography, the climactic First Amendment scene now takes
place, a revolution in constitutional interpretation of free speech. In 1919, in
Justice Holmes’ dissent in the Abrams case, the “clear and present danger”
doctrine is advanced as a major reversal of “bad tendency,” giving new substantive
protection to speech thereafter. Rabban’s revisionism of that age-old myth,
however, asserts “not exactly.”
What, then, really did happen? By 1919 disillusionment and dismay had
undermined the confidence of Progressives in a beneficent state serving the public
interest. Wartime repression and postwar Red Scare hysteria, plus the failure of the
Versailles Treaty to support Wilsonian ideals, converted many to the cause of
defending individual rights from government attack. More important, Zechariah
Chafee had published his famous “Freedom of Speech in Wartime” in the Harvard
Law Review (June 1919), an article that used prewar legal theories of free speech
while ignoring the entire historical context in which libertarian radicals had
contested its judicial suppression. To make the moment even more dramatic,
Chafee claimed that there had been no bad tendency cases between the Sedition
Act of 1798 and World War I.
Chafee’s real contribution represented a constitutional sleight of hand. Holmes
had originally announced the clear and present danger test in upholding the
conviction in Schenck, an obvious doctrinal commitment to bad tendency since it
emphasized the proximity and degree of the words to the possible outcome.
Chafee, however, saw the protective possibilities the phrase contained and
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described them in his law review article as well as in conversations with Holmes.
The result is history, an account analyzed in lengthy and fascinating detail in
Rabban’s final chapters. Although clear and present danger could still have
restrictive implications, it opened up further First Amendment defense options. In
the balancing act of judicial interpretation, free speech claims would now “weigh
very heavily in the scale,” especially since bad tendency’s co-doctrines of indirect
causation and constructive intent should not come into play (pp. 320–321).
The born-again First Amendment Progressives who helped create “the modern
civil liberties movement” (p. 299) changed constitutional interpretation and
supported the American Civil Liberties Union as the watchdog of that success. Yet
that elite and privileged group lacked the radical commitments of the earlier
libertarians to an uncompromising all-out defense of First Amendment freedoms.
Neither were they familiar with the heroic struggles that preceded World War I.
Rabban seems to regret that loss and the good old days of Theodore Schroeder and
The Free Speech League. W. Anthony Gengarelly’s recent Distinguished Dissenters and Opposition to the 1919–1920 Red Scare supports that point of view. His
dissenters, described as a “libertarian check” opposing the ravages of government
power, also exhibited a “deep-seated loyalty to the republican-capitalist system”
and remained “wedded to property, order, and power.” The “libertarian check,” he
concluded, “provides only limited control over a more pervasive problem”
(Gengarelly, 1996: 350; 363; 366).
II
Rabban has expertly analyzed the intellectual and legal transformation of
“rights consciousness” with a focus on one major campaign, the 21 IWW free
speech fights between 1909 and 1913. However, what about the role and impact
of other major groups of activists? Does that history not also contribute to our
understanding of free speech and its relation to the First Amendment? Although
Rabban describes the judicial hostility and the bad tendency doctrine, leaving the
impression of continuous repression through legal process, perhaps there was
another hidden history, with different dimensions of success and failure, in the
years between 1870 and 1920. Perhaps the legal theorists ignored it.
In the history of free speech, as Rabban himself acknowledges, legal theory,
elite advocacy, and defense organizations are not the only significant players.
There must also be vigorous, resilient, even heroic individuals and organizations
willing to make a stand on behalf of their rights. Sometimes, but not always, their
struggles will define the reality and substance of constitutional protections. Their
confrontations with authority, however, may be resolved without either constitutional redress or doctrinal reform.
The Populists and the immigrant Left, individually and as organizations, used
and expanded the constitutional rights of free speech, free press, and free
association. In doing so, they greatly extended civil liberties. Yet their tidal waves
A New Story of Civil Liberty in the United States
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of protest inevitably elicited challenges from the entrenched interests of the day,
whose campaigns successfully terminated the further exercise of those rights.
Lawrence Goodwyn’s Democratic Promise: The Populist Moment in America
described the vast extent of that agrarian uprising. Forty thousand Alliance
lecturers propagandized and recruited the faithful in a five-year campaign through
43 states and territories. At the same time, well over 1,000 Alliance newspapers
with their own National Reform Press Association spread the party’s principles,
attacking conservative economics and corporate intimidation. Populists also
forged an interracial coalition. In terms of free speech, free press, equal rights,
voting rights, and mass insurgency, it was unique.
In opposition to the Populists, the mainstream press, the universities, and the
churches corroborated the status quo by cultural propaganda. Race demagogy,
corporate threats to workers, political fraud, terrorism against Populist lecturers
and newspapers, and the impact of corporate money ended the 1896 agrarian drive
for electoral success. Almost immediately, the whole Populist organization,
including the free speech and newspaper network, disintegrated with a chilling
effect on further activist agitation. The stilling of dissent had taken place outside
the realm of the courts and legal theory.
In The Immigrant Left in the United States, edited by Paul Buhle and Dan
Georgakas, the authors rebut the stereotypes of ethnic mentalities as alien to the
democratic and republican norms of the national tradition. Practicing “Americanism” on arrival, they took the First Amendment at face value, creating a large
immigrant network of newspapers, journals, and lecturers with an immense
assortment of associational activities as well. Their foreign language federations
within the Socialist Party typified a responsible politics with an international
flavor, while they fought to redress their grievances and bargain collectively as
union members. Yet the stereotype of their separatism and un-Americanism held
sway. Despite having internalized the values of their adopted country, the country
demanded assimilation by way of its program of Americanization. The melting pot
often meant coercive conversion to Anglo culture, with nativist violence and
government deportation as backup threats.
In the case of immigrants, their very diversity also seemed dangerous. As the
Progressives insisted, community harmony required restrictions on the rights of
individuals, whether aliens or not. The search was for homogeneity and cohesion.
Both immigrants and radicals learned that rights often gave way to rites, speech
itself would be judged by the behavior of the speaker, the tone of the speech, and
the degree to which it was deemed constructive and socially beneficial. Other
Americans whose lives were confined and coerced by company towns, Pinkerton
detectives, blacklisting, anti-Tramp Acts punishing the crime of unemployment,
agrarian peonage, segregation, lynching, and state and federal troops may have
been conditioned to accept their status in society without speaking out in response
or recognizing their First Amendment rights.
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Yet the years before World War I surely represent one of the great eras for a
variety of profound and vigorous free speech movements. However restrictive the
courts and the legal philosophy, First Amendment activists pursued their dreams
only to find themselves marginalized and their dissent stamped out by opposition
weapons that had nothing to do with litigation or the constitutional doctrines
involving speech. One wonders whether that ongoing lurid history of repression
sank into the consciousness of libertarian radicals and what they thought about it.
Did they ponder the costs? Robert J. Goldstein in his Political Repression in
Modern America: From 1870 to the Present has assessed the damage. By the end
of the 1920s, official suppression had destroyed four radical union movements,
isolated and disrupted two major radical political parties, and denied effective
organizing power to the labor movement for some 60 years.
III
In Rabban’s last chapter, he recognizes parallels between today’s debates
about the First Amendment and those of the Progressive Era. Once again critics
(largely on the Left) charge that hate speech has attacked the well-being of
minorities and that corporate speech has subverted the meaning of democratic
politics. Both can undermine the harmony of the community, increase inequality
among citizens and groups, and violate the goal of equal protection under the law.
Campus speech codes have attempted to correct this phenomenon, but have been
declared unconstitutional; the Supreme Court has upheld “the equal right of rich and
poor to express themselves by spending money on political campaigns” (p. 387).
Hate speech has, of course, been a perennial contender for restrictive regulation. The propaganda and disinformation during World War I was just the
beginning. Nazi total radio took it to a totally new dimension as the weapons of
choice against groups and nations it wished to attack or marginalize. By the end
of World War II, the technology of hate and deception and the evil undercurrents
of slander and defamation had contaminated relations among peoples and destroyed morale around the globe. In 1946, the Hutchins Commission on Freedom
of the Press considered that the free market in all media arenas did not naturally
prevent “large numbers [from being] deceived, injured, or degraded” and condemned the distortions of rancorous malignity or the degradation of culture
(Preston, Herman, Schiller, 1989: 26–31; 52–53).
At the same time, the concept of group libel surfaced to protect from malicious
defamation any group, class, or race. In 1952 the Supreme Court upheld group libel
in Beauharnais v. Illinois, but during litigation over the right of American Nazis
to march in Skokie, Illinois, in 1977 and 1978, it seemed that Beauharnais no
longer applied. Yet the world is out of step with the United States on this issue.
According to Samuel Walker’s study, Hate Speech: The History of an American
Controversy, almost every other country as well as several international human
rights declarations “prohibit the expression of offensive racial, religious, or ethnic
A New Story of Civil Liberty in the United States
211
propaganda” (Walker, 1994: 4–5). The ACLU and the NAACP, however, have
opposed group libel legislation because they have realized that the principal
strategy for advancing group rights came to be the expansion of constitutionally
protected individual rights (Ibid.: 16).
No battle for civil liberty necessarily stays won. Hence the ACLU’s call for
eternal vigilance. In Rabban’s illuminating narrative there is talk of turning points
and breakthroughs, of the transformation of a “rights consciousness,” of First
Amendment advances. Yet I cannot resist the metaphor of the shell game and the
location of the pea, or perhaps the smile on the face of the Cheshire Cat. This is not
to deny constitutional progress, but to recognize the shifting sands on which it stands.
Bad tendency is an example. Although exorcised from much judicial decisionmaking, it spread like a toxic tumor to other arenas to restrict speech. Intelligence
agencies, legislative investigations, and loyalty-security hearings featured the bad
tendencies of their suspects through doctrines of guilt by association and anticipatory criminality. In the surveillance of suspect subversives, even innermost
thoughts were considered appropriate clues. Rabban admits that during the Cold
War, the Supreme Court retreated to a restrictive interpretation of speech,
discarding the protections “clear and present danger” were supposed to uphold. In
the conspiracy indictments of Communists, speech twice removed from action
became criminal.
Have the American people become more ardent supporters of free speech?
Rabban believes a First Amendment constituency developed. Yet often it seemed
the pieties indicating its standing cloaked a desire to violate its meaning. During
McCarthyism, polls suggested most individuals would not sign the Declaration of
Independence. A perhaps apocryphal quote from Lyndon Johnson when antiVietnam War protests challenged his policies represents the majority attitude: “I
believe in the right to dissent, but I do not believe it should be exercised.”
Rabban has concluded that “substantial doubts can more generally be raised as
to whether any constitutional standard, however protective its language, can
safeguard speech in times of crisis” (p. 379). Senator Thomas J. Walsh of Montana
had an answer to that after World War I. “It is only in such times that the guarantees
of the Constitution as to personal rights are of any practical value,” he said. “In
seasons of calm, no one thinks of denying them” (quoted in Preston, 1994: 275).
REFERENCES
Buhle, Paul and Don Georgakas
1996
The Immigrant Left in the United States. New York: State University of New
York Press.
Gengarelly, W. Anthony
1996
Distinguished Dissenters and Opposition to the 1919–1920 Red Scare.
Lewiston, N.Y.: Mellen.
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Goldstein, Robert Justin
1978
Political Repression in Modern America: From 1870 to the Present. New
York: Two Continents/Schenkman.
Goodwyn, Lawrence
1976
Democratic Promise: The Populist Moment in America. New York: Oxford
University Press.
Preston, William, Jr.
1994
Aliens and Dissenters: Federal Suppression of Radicals, 1903–1933. Second
Edition. Urbana: University of Illinois Press.
Preston, William, Jr., Edward S. Herman, and Herbert I. Schiller
1989
Hope and Folly: The United States and UNESCO. Minneapolis: University of
Minnesota Press.
Walker, Samuel
1994
Hate Speech: The History of an American Controversy. Lincoln: University of
Nebraska Press.
Whipple, Leon
1952
The Story of Civil Liberty in the United States. New York: DaCapo Press.