FREE SPEECH IN ITS FORGOTTEN YEARS.

#### FREE SPEECH IN ITS FORGOTTEN YEARS.

By David M. Rabban. Cambridge Univ. Press. 393 pp. $34.95

In Schenck v. United States (1919), the Supreme Court ruled that a group of socialists could be imprisoned, First Amendment notwithstanding, for dispensing antiwar circulars to men heading for military service. Writing for the Court, Oliver Wendell Holmes explained that the utterances at issue "are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Holmes’s casual "clear and present danger" aside soon became the judiciary’s test for regulating speech; it remained the analytical standard in sedition cases until the 1950s. Rabban, a professor of law at the University of Texas at Austin, traces the origins of the test by placing Schenck and the other landmark World War I speech cases in a context of legal and intellectual history, creating a rich and textured view of First Amendment law from the 1870s to the 1920s.

Harvard Law School professor Zechariah Chafee, Jr., emerges as a central character in the story. His Freedom of Speech (1920) established the 20th-century framework for analyzing the First Amendment. Written in support of the "clear and present danger" standard, albeit a somewhat more demanding version than Holmes’s, Chafee’s book treated the World War I speech restrictions as virtually unprecedented. Not since the Alien and Sedition Acts of 1798, he claimed, had courts and the law been so unfriendly to free speech. It was a persuasive legal brief, but it turns out to be flawed history: American law and courts were quite hostile to free speech throughout the 19th century.

To Chafee and liberal champions of free speech of the post–World War I era— including Herbert Croly, John Dewey, and Roger Baldwin—speech principally served communal ends. In approaching the First Amendment, they "retained the progressive emphasis on social over individual rights," Rabban explains, even as they worked to avoid a recurrence of the wartime suppressions that putatively had occurred in protection of the community. From these advocates’ perspective, speech must be free in order to benefit society; in those instances when speech demonstrably harms society, it can be abridged. "Clear and present danger" served as their benchmark for the level of harm that justifies suppression.

Rabban points out that First Amendment jurisprudence could have taken a different path. Beginning in the late 19th century, libertarian radicals argued for a broad freedom that would serve individual autonomy rather than the collective good. Under this view, everyone would have the right to speak regardless of viewpoint or impact on society. As Rabban observes, this approach might have provided a sturdier foundation for modern free speech than Chafee’s disingenuous history and the Progressives’ emphasis on community.

This important study ends by reflecting on the current challenges to free speech from the Left. Rabban urges that we recall the lessons the Progressives learned during World War I: democratic governments do not always act in the public interest, and freedom of speech is an essential check on them. It is a caution we ignore at our peril.

—Timothy Gleason