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The Supreme Court and Freedom of Expression from 1791 to 1917

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The Supreme Court and Freedom of Expression from 1791 to 1917 Fordham Law Review Volume 55 Issue 3 Article 1 1986 The Supreme Court and Freedom of Expression from 1791 to 1917 Michael T. Gibson Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Michael T. Gibson, The Supreme Court and Freedom of Expression from 1791 to 1917, 55 Fordham L. Rev. 263 (1986). Available at: https://ir.lawnet.fordham.edu/flr/vol55/iss3/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Supreme Court and Freedom of Expression from 1791 to 1917 Cover Page Footnote * Assistant Professor of Law, Oklahoma City University. B.A. 1979, University of Nebraska-Lincoln; J.D. 1982, Yale University; Law Clerk to Chief Judge Warren K. Urbom, U.S. District Court for the District of Nebraska, 1982-84. The Author would like to thank Professor Owen Fiss of the Yale Law School for reviewing two early drafts of this paper. The Author also is grateful to Professors Phillip Kurland and Ralph Lerner of the University of Chicago for their comments regarding freedom of speech and the press in the eighteenth century and for making available page proofs of The Founders' Constitution (1987). This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol55/iss3/1 THE SUPREME COURT AND FREEDOM OF EXPRESSION FROM 1791 TO 1917 MICHAEL T. GIBSON* INTRODUCTION S ILENCE often is important: to Sherlock Holmes, for example, a dog's failure to bark during the night was significant and suspicious. I The failure of American courts and legal scholars to discuss more than a century of the history of freedom of speech and freedom of the press is also cause for suspicion. Scholars have analyzed freedom of expression from colonial times to the battle over the Sedition Act of 1798,2 yet for the period after the expiration of that statute in 180 1,3 there is little but silence. Except for a few studies of isolated incidents concerning the first amendment,4 scholars jump from the Sedition Act of 1798 to the Espio- * Assistant Professor of Law, Oklahoma City University. B.A. 1979, University of Nebraska-Lincoln; J.D. 1982, Yale University; Law Clerk to Chief Judge Warren K. Urbom, U.S. District Court for the District of Nebraska, 1982-84. The Author would like to thank Professor Owen Fiss of the Yale Law School for reviewing two early drafts of this paper. The Author also is grateful to Professors Phillip Kurland and Ralph Ler- ner of the University of Chicago for their comments regarding freedom of speech and the press in the eighteenth century and for making available page proofs of The Founders' Constitution (1987). 1. A. Doyle, Silver Blaze, in The Memoirs of Sherlock Holmes (1894) (investigating the disappearance of a race horse, Holmes deduces from the watchdog's failure to bark that the horse was taken by his trainer with whom the dog was familiar). 2. The Sedition Act, ch. 74, 1 Stat. 596 (1798). See, eg., 5 The Founders' Constitu- tion 112-85 (P. Kurland & R. Lerner eds. 1987); Freedom Of The Press From Zenger To Jefferson (L. Levy ed. 1966); L. Levy, Emergence Of A Free Press (1985) [hereinafter Levy II]; L. Levy, Legacy Of Supression (1960) [hereinafter Levy I]; J. Miller, Crisis In Freedom (1951); J. Smith, Freedom's Fetters (1956); Berns, Freedom of the Press and the Alien and Sedition Laws: A Reappraisal, 1970 Sup. Ct. Rev. 109; Farber, Reflections on the Sedition Act of 1798, 62 A.B.A. J. 324 (1976); Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 Stan. L. Rev. 661 (1985); Kahane, Colonial Origins of Our Free Press, 62 A.B.A. J. 202 (1976); Kurland, The Original Un- derstanding of the Freedom of the Press Provision of the First Amendment, 55 Miss. LJ. 225 (1985); Levy, The Legacy Reexamined, 37 Stan. L. Rev. 767 (1985); Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History (Book Review), 37 Stan. L. Rev. 795 (1985). 3. The act expired by its own terms on March 3, 1801. The Sedition Act, ch. 74, § 4, 1 Stat. 596, 597 (1798). 4. Freedom of the Press from Hamilton to the Warren Court (H. Nelson ed. 1967) (selection of historical documents discussing freedom of the press); Anderson, The Form- ative Period of First Amendment Theory, 1870-1915, 24 Am. J. Legal Hist. 56 (1980) (municipal ordinances and academic debate affecting first amendment rights); Martin, Freedom of Speech in North Carolina Prior to Gitlow v. New York, 4 Camp. L. Rev. 243 (1982); McCullough, The History of the First Amendment and the Acts of September 24. 1789, and March 2, 1831, 12 S.D.L. Rev. 171 (1967) (survey of questionable media cover- age of legal profession and judicial proceedings); Roper, James Kent and the Emergence of New York's Libel Law, 17 Am. J. Legal Hist. 223 (1973) (examining law of libel as a deterrent to freedom of the press after expiration of Sedition Act of 1798); Tarrant, To "insure domestic Tranquility" Congress and the Law of Seditious Conspiracy 1859-1861, FORDHAM LAW REVIEW [Vol. 55 nage Act of 19171 and Justice Holmes's "clear and present danger" opinions of 1919,6 paying little, if any, attention to the intervening pe- riod.7 The silence of a watchdog during a single night is puzzling; a one hundred and twenty year gap in the history of one of the most important parts of the Constitution is quite disturbing. It would be troubling if, for over a century, litigants and judges neither invoked nor discussed free- dom of speech and of the press; and it would also be cause for concern if courts had discussed those freedoms but had interpreted them in a man- ner inconsistent with modern interpretations of the first amendment. These concerns bode ill for the traditional American view that this nation always has valued and zealously protected the right to free expres- sion.s Discussions of the amendment's formation and its relation to the Sedition Act have suggested that the original meaning of the first amend- 15 Am. J. Legal Hist. 107 (1971) (examining attempt to pass a law of seditious conspiracy in immediate pre-Civil War period). 5. Espionage Act, ch. 30, 40 Stat. 217 (1917), as amended by Act of May 16, 1918, ch. 75, § 1, 40 Stat. 553 (1918) (repealed 1948). 6. Abrams v. United States, 250 U.S. 616 (1919) (Holmes, J., dissenting); Debs v. United States, 249 U.S. 211 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Schenck v. United States, 249 U.S. 47 (1919). 7. Rabban, The First Amendment in Its Forgotten Years, 90 Yale L.J. 514, 516-17 (1981) (scholars and judges accepted Professor Chafee's interpretation of the history of free speech cases that "essentially ignored the years between the Sedition Act of 1798 and the Espionage Act of 1917"); see also Currie, The Constitution in the Supreme Court. Full Faith and the Bill of Rights, 1889-1910, 52 U. Chi. L. Rev. 867, 870 (1985) ("Study of this area tends to begin with the great espionage cases of the First World War."); see, e.g., E. Barrett & W. Cohen, Constitutional Law 1050-53 (7th ed. 1984); N. Dorsen, P. Bender, & B. Neuborne, Political and Civil Rights in the United States 17.-31 (4th ed. 1976) (brief discussion of first amendment events during nineteenth century); D. Gillmor & J.Barron, Mass Communication Law 96 (1974) (Supreme Court gave no serious attention to first amendment until World War I); G. Gunther, Constitutional Law 972-76 (11 th ed. 1985) (Court's first major free speech cases came after World War I); W. Lockhart, Y. Kamisar, & J. Choper, The American Constitution 650 (5th ed. 1980) (no discussion); R. Rotunda, Modern Constitutional Law Cases And Notes (1985) (no discussion). Even contemporary scholars devoted relatively little space to freedom of expression. See, e.g., 2 Kent's Commentaries On American Law 16-26, 35-37 (0. Holmes Jr. 12th ed. 1884) (eleven pages discussing libel and four discussing religion in a four-volume work); 2 Story's Commentaries On The Constitution Of The United States 613-47 (5th ed. 1891) (thirty-five pages discussing first amendment in two-volume work); Yale Law School Faculty. Two Centuries' Growth Of American Law (1980) (no mention of first amend- ment); J. Thayer, Cases On Constitutional Law 732, 869 (1895) (discussion limited to regulation of parades and the mails). The first authoritative history of the Suprenie Court makes frequent, though brief, references to the Sedition Act, see 1 C. Warren. The Supreme Court in United States History 164-65, 180, 191, 215, 225-26, 267, 273, 282, 358, 363-65 (rev. ed. 1932); and discusses United States v. Hudson, II U.S. (7 Cranch) 32 (1812). see 1 C. Warren, gupra, at 437-39; Civil War censorship, see 2 C. Warren, supra, at 373 & n. 1;Ex parte Curtis, 106 U.S. 371 (1882), see 2 C. Warren, supra, at 651-52; and Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913), see 2 C. Warren, supra, at 723. 8. Professor Levy, for example, acknowledged the dangers that historical research presented to what he called the "Holmes-Chafee traditional liberal position," after Justice Oliver Wendell Holmes, and Harvard Professor Zechariah Chafee, Jr.
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