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The First Amendment Comes of Age: the Emergence of Free Speech in Twentieth-Century America

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The First Amendment Comes of Age: the Emergence of Free Speech in Twentieth-Century America Michigan Law Review Volume 95 Issue 2 1996 The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America G. Edward White University of Virginia Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, First Amendment Commons, Law and Philosophy Commons, Legal History Commons, and the Supreme Court of the United States Commons Recommended Citation G. E. White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America, 95 MICH. L. REV. 299 (1996). Available at: https://repository.law.umich.edu/mlr/vol95/iss2/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THE FIRST AMENDMENT COMES OF AGE: THE EMERGENCE OF FREE SPEECH IN TWENTIETH-CENTURY AMERICA G. Edward White* INTRODUCTION As the number of issues perceived as having First Amendment im­ plications continues to grow, and the coterie of potential beneficiaries of First Amendment protection continues to widen - including not only the traditional oppressed mavericks and despised dissenters but some rich and powerful members from the circles of political and eco­ nomic orthodoxy - alarms have been sounded. Another period of stocktaking for free speech theory appears to be dawning, and some re­ cent commentators have proposed a retrenchment from the long twenti­ eth-century progression of increasingly speech-protective interpretations of the First Amendment. At the heart of the retrenchment literature lies the belief that some forms of expression are incompatible with the aspi­ rations of contemporary Americans for a civic-minded, decent, compas­ sionate, and responsible society.1 One might attribute to the contributions of retrenchment advocates an implicit questioning of the special constitutional and cultural status of free speech in America. Such a reading invites parallels between the perspective of retrenchment commentators and a much older view of the status of speech. That view was embodied in an often anthologized attack on Justice Holmes's dissent in Abrams v. United States2 made by John Wigmore in 1920. In his attack Wigmore distinguished between "Freedom of Speech" and "Freedom of Thuggery," and maintained * University Professor and John B. Minor Professor of Law and History, Univer­ sity of Virginia. B.A. 1963, Amherst; M.A., Ph.D. 1967, Yale; J.D. 1970, Harvard. - Ed. My thanks to Vmcent Blasi, Mary Anne Case, Barry Cushman, Stephen J. Feldman, Jack Goldslnith, Mark Graber, Thomas Andrew Green, John Harrison, Michael Klar­ man, Alfred S. Konefsky, Peter Linzer, Robert Post, David Rabban, John Henry Schle­ gel, and Michael Seidman for their comments on earlier drafts of this article. Thanks also to Cathleen Curran for research assistance. An early draft of the article was presented at the Faculty Workshop at the University of Vrrginia School of Law. I appre­ ciate the constructive irreverence with which many of my colleagues reacted to the presentation. 1. See infra text accompanying notes 270-92 (discussing relevant sources). 2. 250 U.S. 616, 624-31 (1919) (Holmes, J., dissenting). 299 300 Michigan Law Review [Vol. 95:299 that a civilized society such as the United States, whose members en­ joyed ample freedoms, had the capacity to distinguish those utterances that enhanced the body politic from those that corroded it. Wigmore suggested that American citizens had a moral, as well as a legal, right to repress speech that passed the boundaries of civilized interchange and accordingly threatened the fa bric of the community.3 I am not primarily interested here in exploring the parallels be­ tween Wigmore's perspective on free speech and that exhibited by cur­ rent retrenchment advocates. Nor is my central concern with the sali­ ency of various arguments advanced in retrenchment commentary. The recent proposed retrenchment of libertarian free speech theory has stim­ ulated me to consider a broader issue: How did free speech, and the First Amendment, come to be treated as special, both constitutionally and culturally, in America? It is remarkable, given the significant attention to First Amendment issues in legal commentary, that no detailed explanation for the special status of free speech in twentieth-century America hitherto has been ad­ vanced. It is conventional wisdom in current constitutional jurispru­ dence that the First Amendment, and the idea of protection for free speech, have been regarded for several decades as being at the very center of the American constitutional enterprise, whereas before World War I both the First Amendment and the idea of freedom of speech oc­ cupied a fa r more marginal status. Moreover, because of the increasing anthologization of some important work on the role of free speech in the late nineteenth century, scholars and students have a clearer under­ standing of the "prehistory" of modem First Amendment jurisprudence.4 But as yet no comprehensive inquiry has been undertaken into the question of why the First Amendment and freedom of speech "came of age," that is, came to occupy the status of constitutional and cultural 3. See John H. Wigmore, Abrams v. United States: Freedom of Sp eech and Free­ dom of Thuggery in Wa r-Time and Peace-Time, 14 ILL. L. REV. 539, 552-54 (1920). 4. The most significant contributors have been David Rabban and Mark Graber. See MARK A. GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY OF CIVIL LIBERTARIANISM (1991); David M. Rabban, Th e Emergence of Modern First Amendment Doctrine, 50 U. Cm. L. REv. 1205 (1983) [hereinafter Rabban, Emer­ gence]; David M. Rabban, The First Amendment in Its Forgotten Ye ars, 90 YALE L.J. 514 (1981) [hereinafter Rabban, Forgotten Years]; David M. Rabban, Th e Free Sp eech League, the ACLU, and Changing Conceptions of Free Sp eech in American History, 45 STAN. L. REv. 47 (1992); David M. Rabban, Th e /WW Free Sp eech Fights and Popu­ lar Conceptions of Free Expression Befo re World Wa r I, 80 VA. L. REv. 1055 (1994); David M. Rabban, Th e Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History, 37 STAN. L. REv. 795 (1985) (reviewing LEONARD W. LEVY, EMERGENCE OF A FREE PREss (1985)). November 1996] First Amendment 301 lodestars, in twentieth-century America.5 This article attempts such an inquiry, and in the process seeks to revise some conventional wisdom on a related subject: the origins and evolution of the bifurcated review project, in which constitutional challenges to legislative infringements on property rights or economic activity received a lower level of judi­ cial scrutiny than constitutional challenges to legislative infringements on noneconomic "rights" or "liberties." Specifically, I argue in this article that the most complete and sat­ isfactory account of the twentieth-century jurisprudential and cultural emergence of the First Amendment and the idea of freedom of speech is one that associates the elevation of speech to special status with the emergence, in the early years of the twentieth century, of a "modern­ ist" consciousness. This modernist consciousness bore a distinctive re­ lationship to democracy and capitalism, the two prominent political and economic models of what I call "modernity." 6 In addition, I argue that the bifurcated review project, convention­ ally identified as beginning with Chief Justice Stone's celebrated "foot­ note four" in the 1938 case of United States v. Carolene Products Co.,1 5. Michael K.larman's article,Rethinking the Civil Rights and Civil Liberties Revo­ lutions, 82 VA. L. REv. 1 (1996), demonstrates an awareness of the absence of histori­ cal inquiries into the emergence of free speech as a particularly important constitutional and cultural concept in twentieth-century America, and offers a preliminary hypothesis for making sense of that emergence. See id. at 34, 39-41. K.larman's hypothesis attaches significance both to particularistic political and economic coalitions within American culture in the period between World War I and World War II and to the effect of those coalitions on constitutional litigation and the process of judicial appointment. This explanation, insofar as it stresses the role of World War I as a cause of altered attitudes toward speech, tracks an argument made by Rabban. See Rabban, Emergence, supra note 4, at 1213-16, 1313-15. The importance of World War I also is emphasized in the work of the leading historian of free speech in twentieth-century America, Paul Murphy. See, e.g., PAUL L. MURPHY, THE MEANING OF FREEDOM OF SPEECH: FmsT AMENDMENT FREEDOMS FROM Wn.soN TO FDR 4, 21-22 (1972). That hy­ pothesis is not inconsistent with the explanatory framework set forth in this article, but I believe it is incomplete. The question is not only why, after many years, Congress sought to restrict speech in statutes passed against the backdrop of World War I, but also why those statutes were challenged on constitutional grounds, and why a new, more speech-protective approach to the First Amendment emerged as a result of the challenges. The wartime context of the cases, which accentuated the negative conse­ quences of allegedly "subversive" speech, might have suggested otherwise. In short, previous commentators have tended to suggest that free speech emerged to a position of constitutional and cultural stature because of factors external to the al­ tered intellectual meaning of the concepts of "freedom" and "speech" themselves. This article suggests that a full explanation of the rise of the First Amendment to constitu­ tional and cultural prominence also must explore the nature of that altered intellectual meaning.
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