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Louis D. Brandeis and the Origins of Free Speech University of Louisville ThinkIR: The University of Louisville's Institutional Repository Electronic Theses and Dissertations 5-2013 A progressive mind : Louis D. Brandeis and the origins of free speech. Elizabeth Diane Todd University of Louisville Follow this and additional works at: https://ir.library.louisville.edu/etd Part of the First Amendment Commons, Political History Commons, and the United States History Commons Recommended Citation Todd, Elizabeth Diane, "A progressive mind : Louis D. Brandeis and the origins of free speech." (2013). Electronic Theses and Dissertations. Paper 1446. https://doi.org/10.18297/etd/1446 This Master's Thesis is brought to you for free and open access by ThinkIR: The University of Louisville's Institutional Repository. It has been accepted for inclusion in Electronic Theses and Dissertations by an authorized administrator of ThinkIR: The University of Louisville's Institutional Repository. This title appears here courtesy of the author, who has retained all other copyrights. For more information, please contact [email protected]. A PROGRESSIVE MIND: LOUIS D. BRANDEIS AND THE ORIGINS OF FREE SPEECH By Elizabeth Diane Todd B.A., Transylvania University, 2010 A Thesis Submitted to the Faculty of the College of Arts and Sciences of the University of Louisville in Partial Fulfillment of the Requirements for the Degree of Master of Arts Department of History University of Louisville Louisville, Kentucky May 2013 Copyright 2013 by Elizabeth Diane Todd All rights reserved A PROGRESSIVE MIND: LOUIS D. BRANDEIS AND THE ORIGINS OF FREE SPEECH By Elizabeth Diane Todd B.A., Transylvania University, 2010 A Thesis Approved on April 9, 2013 by the following Thesis Committee: Thomas C. Mackey, Thesis Director Benjamin Harrison Jasmine Farrier ii DEDIC!\. nON This dissertation is dedicated to my parents Robert and Martha Todd for believing in me. III ACKNOWLEDGMENTS I would like to thank the History Department at the University of Louisville for providing me with the knowledge and support necessary for obtaining my degree. In particular, I want to thank Dr. Thomas Mackey for his guidance and encouragement over the past two years. He challenged me to work harder and inspired me to dream bigger. I want to thank my other committee members, Dr. Benjamin Harrison and Dr. Jasmine Farrier, for their assistance in my thesis work. I want to thank Lee Keeling for her tireless efforts to help graduate students like myself. I want to thank my fellow graduate students, Sarah Reddick and Erin Wotring, for helping me maintain my sanity. I want to thank the James Madison Memorial Fellowship Foundation for funding my graduate work and allowing me the opportunity to study at Georgetown University in the summer of2012. I want to thank my family and friends for nurturing me and cheering me on. And finally, I want to thank Chad Byron for loving his little historian. IV ABSTRACT A PROGRESSIVE MIND: LOUIS D. BRANDEIS AND THE ORIGINS OF FREE SPEECH Elizabeth Diane Todd May 11,2013 This study argues that Associate Supreme Court Justice Louis D. Brandeis played a key role in shaping the jurisprudence of free political speech in the United States. Brandeis's judicial opinions on three freedom of speech cases in the post-World War I era provide the evidence for this argument. This thesis demonstrates how the Espionage and Sedition Acts of World War I allowed Brandeis the opportunity to reflect and rule on the Founding Fathers' meaning of free speech in a political democracy. Chapter I offers a detailed historiography of the Progressive Era and World War I. Chapter II provides a biography of Louis D. Brandeis and a historiography of civil liberties during World War I. Chapter III analyzes Associate Justices Holmes and Brandeis's shifting opinions on free speech in the 1919 cases of Schenck v. United States and Abrams v. United States. Chapter IV breaks down Brandeis's dissenting opinion in Gilbert v. Minnesota (1920). Chapter V examines Brandeis's solidified stance on free speech in the case of Whitney v. California (1927). In conclusion, this study finds that Brandeis's opinions created the language and support to apply the federal First Amendment to the states and to apply the "imminent threat" standard to free political speech cases. v TABLE OF CONTENTS PAGE ACKNOWLEDGMENTS ....................................................................... .iv ABSTRACT ....................................................................................... v INTRODUCTION: SETTING THE STAGE ................................................. 1 CHAPTER I: THE COMPLEX BACKDROP OF THE PROGRESSIVE ERA AND WORLD WAR I. ................................................................................. 7 CHAPTER II: THE LIFE OF LOUIS D. BRANDEIS AND THE HISTORICAL CONTEXT OF CIVIL LIBERTIES ............................................................ 30 CHAPTER III: THINKING THROUGH RATHER THAN AT THE FREEDOM OF SPEECH: BRANDEIS'S ROLE IN ABRAMSV. UNITEDSTATES ....................... 56 CHAPTER IV: WRITING HIS OWN OPINION: BRANDEIS'S MINORITY DECISION IN GILBERTV. MINNESOTA ... ................................................. 80 CHAPTER V: CONCURRING, YET STANDING APART: BRANDEIS'S OPINION ON WHITNEYV. CALIFORNIA ............................................................... 97 CONCLUSION: BRANDEIS'S LEGACY ON FREE SPEECH ........................ .121 REFERENCES ................................................................................... 128 CURRICULUM VITAE ........................................................................ 135 VI INTRODUCTION SETTING THE STAGE In the twenty-first century, scholars consider the First Amendment to define the fundamental rights of American citizens. Americans use their political freedom of speech on a daily basis through public protest, speeches, and strikes, and the distribution of their beliefs via papers and/or internet media. Yet, Americans have not always defended the freedom of speech of the First Amendment in such a manner. In 1791, the states ratified the Bill of Rights and constituted that "the people" was not nearly as expansive as it is today. Furthermore, the federal Bill of Rights only applied to the federal United States Constitution, leaving individual rights to be controlled by the state constitutions and their separate local customs and traditions. It would not be until 1925, in Gitlow v. New York, that the concept of incorporation applied the freedom of speech in the federal Bill of Rights against the states. 1 And even then it was a gradual process in which separate decisions by the United States Supreme Court applied each right from the Bill of Rights to the states under the "due process" clause of the Fourteenth Amendment, in a process known as "selective incorporation.',2 Rights have evolved over the past century to encompass all American citizens in all states. This thesis argues that Associate Justice Louis Brandeis of the United States Supreme Court played a significant role in shaping the eventual jurisprudence of the freedom of speech in the United States through 1 Citlow v. New York, 268 U.S. 652 (1925). 2 Paul L. Murphy, Liberty and Justice: A Historical Record ofAmerican Constitutional Development (New York: Alfred A. Knopf, 1958),302-303. his judicial opinions in the post-World War I cases, Abrams et al. v. United States (1919), Gilbert v. State ofMinnesota (1920), and Whitney v. California (1927).3 Starting in 1914 with the outbreak of war in Europe, President Woodrow Wilson began his preparatory work for a united American front in case the United States entered the war. Traveling the nation, President Wilson gave numerous speeches that warned of aliens and hyphenates in the United States. Wilson referred to aliens as any non-United States citizens living in the United States and he identified hyphenates as any American citizens who were identified by their country of origin, for example German-Americans. He argued that if the United States entered the war, these individuals would side with their countries of origin and cause an internal security threat to the United States. He directed his conspiracy theory at German-Americans, Socialists, Irish-Americans and other groups that he deemed to be "radicals.,,4 In one speech to the Daughters of the American Revolution in 1915 he exclaimed, "I am in a hurry to have a line-up, and let the men who are thinking first of other countries stand on one side, and all those that are for America first, last and all the time, on the other side. ,,5 In 1916, President Wilson proposed legislation to Congress restricting freedom of speech and press. While not enacted then, the bill rested in Congress until 1917 when the United States entered the war. At that point, Wilson's threat of internal dissent was so ingrained in the minds of Americans that Congress passed the Espionage Act of 1917 3 Abrams et al. v. United States, 250 U.S. 616 (1919); Gilbert v. State ofMinnesota, 254 U.S. 325 (1920); Whitney v. California, 274 U.S. 357 (1927). 4 Ibid., 53. See also, John Milton Cooper, Woodrow Wilson: A Biography (New York: Alfred A. Knopf, 2009). 5 Ray Stannard Baker and William E. Dodd, The New Democracy: Presidential Messages, Addresses, and Other Papers (New York: Harper, 1962),3:377. 2 with broad public support. As historian Paul Murphy explained in World War I and the Origin of Civil Liberties in the United States: Wilson's pre-entry attitudes and behavior were carried to their logical extreme when war came. The president was a man who
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