Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment Reuel E

University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 2000 Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment Reuel E. Schiller UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Part of the Administrative Law Commons, and the Legal History Commons Recommended Citation Reuel E. Schiller, Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment, 86 Va. L. Rev. 1 (2000). Available at: http://repository.uchastings.edu/faculty_scholarship/707 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Faculty Publications UC Hastings College of the Law Library Schiller Reuel Author: Reuel E. Schiller Source: Virginia Law Review Citation: 86 Va. L. Rev. 1 (2000). Title: Free Speech and Expertise: Administrative Censorship and the Birth of the Modern First Amendment Originally published in VIRGINIA LAW REVIEW. This article is reprinted with permission from VIRGINIA LAW REVIEW and University of Virginia School of Law. VIRGINIA LAW REVIEW VOLUME 86 FEBRUARY 2000 NUMBER 1 ARTICLE FREE SPEECH AND EXPERTISE: ADMINISTRATIVE CENSORSHIP AND THE BIRTH OF THE MODERN FIRST AMENDMENT Reuel E. Schiller* I. INTRODUCTION ............................................................................. 2 II. HISTORIANS AND THE FIRST AMENDMENT ............................... 5 III. DEFINING THE SCOPE OF ADMINISTRATiVE CENSORSHIP: POLICE POWER AND EXPERTISE ................................................. 11 IV. ADMINISTRATIVE CENSORSHIP .............................................. 21 A. State Administrative Censorship:1900-1952 ...................... 22 1. Public Fora........................................................................ 22 2. Motion Pictures................................................................. 29 B. FederalCensorship: 1900-1945 ........................................... 37 1. The Mails ............................................................................ 38 2. Customs Prohibitions....................................................... 42 3. Radio Broadcasting............................................................ 43 C. Conclusion............................................................................. 51 V. THE DECLINE OF ADMINISTRATIVE CENSORSHIP .................. 51 A. The Beginnings....................................................................... 51 B. Weakening Administrative Censorship .............................. 57 1. Federal Customs Restrictions.......................................... 57 Associate Professor of Law, University of California, Hastings College of the Law. B.A., Yale University. J.D., University of Virginia. Ph.D. (History), University of Virginia. My thanks to Vik Amar, Ash Bhagwat, Michael Klarman, Evan Lee, Charles McCurdy, Robert Post, G. Edward White, and Jane Williams, each of whom commented on drafts of this Article. Suzanne Robinson provided excellent research assistance. I presented a version of this Article at the New York University Legal History Colloquium and benefited from the thoughts of the participants. HeinOnline -- 86 Va. L. Rev. 1 2000 Virginia Law Review [Vol. 86:1 2. State Regulation of Public Fora...................................... 59 3. FederalRegulation of the Mails ......................................66 4. State Regulation of Motion Pictures............................... 70 C. Conclusion............................................................................. 74 VI. CAUSATION: WHY THE DECLINE? ........................................ 75 VII. THE CURIOUS CASE OF RADIO REGULATION .................... 96 VIII. CONCLUSION ............................................................................101 I. INTRODUCTION H ISTORICAL inquiries into the origins of judicial protection of free speech usually come festooned with great stories- thrilling narratives, albeit in a legal mode. The time: 1917. The Great War ravages Europe. The Bolsheviks seize power in Russia. In the United States, paranoid legislatures pass oppressive sedition laws. Reactionary prosecutors throw outspoken reformers and political radicals in jail. Noble lawyers battle for their freedom. Many ringing phrases are bandied about: "Every idea is an incite- ment";' "It is the function of speech to free men from the bondage of irrational fears."2 Our heroes lose at first, but ultimately justice triumphs and freedom of expression is elevated to its rightful position in the pantheon of constitutional liberties. Unfortunately, thrilling stories do not complete history make. Even as these legal battles were fought and, indeed, after they were won, vast amounts of censorship and expression regulation contin- ued unabated. Certainly the sedition cases that followed the First World War (the dramatic narrative) are worthy of our attention. They involved an egregious trespass on individual liberties- imprisoning people for expressing their political views-and they marked the first steps towards our contemporary understanding of the First Amendment. This Article, however, argues that to truly understand the emergence of the modem First Amendment we need to shift our attention forward in time, to the 1940s. We also need to inquire into an area of speech suppression that was more banal, and more widespread, than criminal prosecution of seditious speech: administrative censorship. From the Civil War until the IGitlow v. New York, 268 U.S. 652, 673 (1925) (Holmes, J., dissenting). 2Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J., concurring), over- ruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969). HeinOnline -- 86 Va. L. Rev. 2 2000 2000] Free Speech and Expertise 1950s, state and federal administrative agencies and municipal offi- cials routinely suppressed speech based on judgments about its content. Administrative regulation of speech was pervasive. Ad- ministrative agencies determined what movies Americans could see, what books they could read, what they could send through the mails, what programming would be broadcast on the radio, and who could speak on the proverbial village green. Much of this censorship was uncontroversial, in that it did not touch on the politically charged is- sues of the day. Nevertheless, administrators judged the content of speech in ways that would be unthinkable today. The extant scholarship fails to discuss this sort of censorship in any detail. Consequently, the story of the rise and persistence of substantial judicial controls over executive and legislative actions that restrict speech is incomplete. This Article argues that to understand this story fully, we must place it in the context of the American people's conceptions about government. In particular, we must examine how they thought public policy should be made and which institutions they believed were best suited to protect civil liberties. I will suggest that the recognition of a constitution- ally preferred position for the Free Speech Clause of the First Amendment required a two-step process. Not only did courts have to lose faith in the ability of legislators to regulate speech, they also had to lose faith in the ability of administrators to do so. That process involved more than a simple shift in the judiciary's priori- ties about which rights it should protect. It required a shift in the judges'-and I will argue, all Americans'-beliefs about how public policy is best made in a democracy; a shift in how people thought government should work. The substance of this shift was the ebbing of a faith in expertise that dominated policymaking from the turn of the century to the eve of World War II. Progressives and New Dealers both believed in what I will call prescriptivegovernment, in which expert administrators controlled the policymaking process. By virtue of their expertise, it was thought that these administrators could arrive at objectively correct public policy outcomes. Only when the pre- scriptive beliefs of prewar reformers were destroyed during the Second World War could the new libertarian conception of free speech be applied to administrative regulation. Previously, faith in administrative expertise acted as a buffer to protect administrative HeinOnline -- 86 Va. L. Rev. 3 2000 4 Virginia Law Review [Vol. 86:1 action from judicial scrutiny. The constitutional value of freedom of expression was left to administrators, not to courts, to protect. It was subsumed under administrative law. The existing historiography describes events in the 1910s, 1920s, and 1930s that caused the judiciary to begin to lose trust in legislatures' ability to regulate speech. This Article demonstrates how this process accelerated during the 1940s and explains why this accel- eration occurred. It also explains why, around the same time, the judiciary began to lose its faith in expert administrators. I will argue that both of these phenomena had to occur before administrative censorship would decline. By describing the decline of administrative censorship, I will demonstrate that the emergence of modem free speech libertarianism was related to broader changes in American political culture that occurred during the New Deal

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