Chapter Three
Progressive Responses to Free Speech Conflict, 1915-1927

During World War I and the red scare, free speech became the subject of significant national debate for the first time in modern American history.1 Fearing national disunity and Bolshevism, Congress passed the Espionage Act of 1917 and the Sedition Act of 1918,2 the first federal statutes to restrict the expression rights of American citizens since the Sedition Act of 1798.3 More than two thousand people were charged with violating their provisions, and more than one thousand were convieted. Many states followed suit, passing new laws or enforcing older ones in ways that significantly curtailed radical critiques of American politics.4 Political dissidents quickly challenged the constitutionality of these repressive practices. Appeals from adverse lower court rulings soon reached the Supreme Court, which proceeded to hand down its first major decisions on the constitutional meaning of free speech.5

Although, as noted in chapter 2, progressives had not seriously considered the appropriate scope of governmental power over expression before World War I, they were well prepared to examine the matter.6 Throughout the previous fifteen years, intellectuals had developed a new philosophical language, pragmatism, and a new legal language, sociological jurisprudence, for discussing and resolving fundamental political and constitutional issues. Earlier controversies over the status of immigrants in American society anticipated questions about the place of diver-

sity and participation in American democratic life, concerns central to wartime and postwar fights over free speech. When confronting these issues, prewar progressive reformers disputed whether the community would benefit from policies that discouraged foreign-born residents from expressing their opinions on various political and cultural matters. When the Wilson administration began arresting its left-wing critics, proponents and opponents of speech rights could rely heavily on positions they formulated in prewar debates.

Many progressives asserted that preserving social community under modern conditions required an individual conformity inconsistent with broad rights of political dissent. Immigrants had to be "Americanized," they claimed, and radical critics silenced. Others thought that only a few leaders had the social science expertise necessary to maintain social cohesion. In the eyes of Herbert Croly and Walter Lippmann, universal expression rights were unimportant, if not inefficient. Federal and state censorship was constitutional, opponents of broad advocacy rights argued, because the elected branches of government had the same, virtually unlimited power over expressive activity that proponents of sociological jurisprudence thought the people's representatives had over economic activity. In their opinion, government could regulate any form of economic or speech behavior that might adversely affect the public welfare.

Several prominent progressive thinkers, however, were committed to free-speech rights for everyone. In the early years of the twentieth century, John Dewey, Jane Addams, Louis Brandeis, and others interpreted pragmatism's emphasis on social experimentation and communitarianism as a call for social heterogeneity and an active citizenry. They first promulgated these values in the early twentieth century while defending cultural pluralism, educational reform, and industrial democracy. When proponents of cultural homogeneity moved to unify political opinion during World War I and the red scare, many reformers who identified with the more locally oriented wing of the progressive movement claimed that protection and promotion of expression was another important way to foster much needed diversity and participation.

Dewey, Addams, and Brandeis were the first representatives of an emerging civil libertarian tradition. They stressed the social interest in debate about matters of public importance and denigrated those purely personal benefits of self-expression that such earlier libertarians as Cooley, Burgess, and Schroeder had emphasized. More generally, the new generation of libertarians spoke of the ways in which free speech contributed to a democratic social life, a life infused by democratic social policies as well as democratic political procedures. While both civil and conservative libertarians claimed that democratic societies must protect expressive behavior, Dewey, Addams, and Brandeis contended that such associations also had to regulate economic activity to ensure that all citizens had the resources necessary to participate effectively in the public life of their communities.

At its inception, however, the new civil libertarian tradition faced a severe constitutional crisis. Although the philosophical advantages of open political debate could be both defended and attacked by arguments wholly derived from the fundamental concepts of pragmatism, the principles of sociological jurisprudence seemed to condemn unequivocally any judicial activism on behalf of constitutional expression rights. As noted in chapter 2, early twentieth-century reformers opposed legal claims that were based on abstract principles of individual right, and they thought that courts should not second-guess the ways in which the elected branches of government had balanced various social interests in political conflicts. More generally, progressive jurists asserted that no principled distinction existed between judicial activism on behalf of the freedom of contract and judicial activism on behalf of the freedom of speech. Any constitutional defense of the latter, they thought, would implicitly defend the former, and proponents of sociological jurisprudence were not prepared to advance any argument that implied that Lochner v. New York might not have been a gross abuse of judicial power. Early civil libertarians were as fully committed to these propositions as were the advocates of restrictions on speech. Thus, they had difficulty translating their philosophical claims into constitutional arguments. If progressive proponents

of open discussion failed to convince legislatures that the social interest in free speech outweighed the potential costs of advocacy, then their democratic principles seemed to preclude the possibility of an appeal to the judiciary.

In spite of these obstacles, Oliver Wendell Holmes, Jr., Ernst Freund, Learned Hand, and Louis Brandeis all issued celebrated attacks on judicial opinions that affirmed the convictions of political dissenters arrested during World War I and the red scare. Contemporary libertarians typically treat those utterances as the foundations of modern judicial solicitude for the liberty of discussion. Nevertheless, although these progressive jurists effusively praised the philosophical virtues of free speech, their writings did not attempt to refute the new constitutional attack on expression rights. Rhetorical flourishes aside, Holmes actually protected only the rights of obscure speakers. Freund and Hand conceded that Congress had the constitutional power to prohibit verbal opposition to the war and war policies, but they interpreted the Espionage Act as not criminalizing such speech. Brandeis defended prominent radical activists but admitted that such protection was inconsistent with his conception of the judicial function. He confessed that he would have dutifully refused to protect the liberty of discussion had conservative justices correctly refused to protect the liberty of contract. However, the principle of stare decisis, Brandeis insisted, obligated his brethren to strike down state restrictions on political dissent because speech was another aspect of the mistaken conception of constitutional freedom that the Court was using to protect property rights. Although temporarily successful, this line of argument would leave the liberty of discussion bereft of constitutional foundation in that not too distant day when Lochner and similar cases were no longer usable precedents.

The New Attack on Free Speech

Few progressive reformers were troubled by the difficulty of constructing a constitutional defense of free speech that was consistent with the principles of sociological jurisprudence. Most prominent early twentieth-century proponents of federal and state economic regulations also supported federal and state

speech regulations. As numerous scholars have noted, progressive efforts to "discipline American society" and the progressive "appetite for national unity" were responsible for the restrictions placed on political debate during the second decade of the twentieth century.7 Theodore Roosevelt, whose presidency ushered in the progressive era, endorsed "legislation, no matter how extreme, that will reach men who vilify and defame America."8 Progressive members of the Wilson administration wrote, proposed, and enforced the Espionage and Sedition Acts. The most notorious red-baiter of the postwar era, Attorney General A. Mitchell Palmer, was a nationally known political reformer in the prewar years.9

Cultural Nationalism

Progressive calls for state censorship stemmed from their particular sensitivity to the threats that industrialization, urbanization, and immigration presented to the socially homogeneous small rural communities of nineteenth-century America.10 Prominent intellectuals claimed that only self-conscious governmental policies designed to promote national cultural uniformity could reproduce these communities under twentieth-century conditions. As part of their effort to create a shared national ethos, many reformers called for positive federal programs to prevent foreign-born residents from transplanting their political and cultural institutions to American shores. Immigrants had to be "Americanized" if they were to shed allegiances to foreign governments and ideas.

The Americanization movement's emphasis on active government intervention reflected its strong progressive tinge. Frances Kellor, the longtime head of the National Americanization Committee, was a former Roosevelt aide and a member of the National Committee of the Progressive party. Assimilation, she and her associates maintained, could be achieved only through social planning; new arrivals would not spontaneously acquire uniform characteristics and values as the older, conservative, laissez-faire image of the melting pot suggested.11 Kellor endorsed governmental employment agencies and stricter federal control of interstate businesses in order to eliminate the "causes of disorder,

unrest and disloyalty" among aliens. If the economic carrot did not induce cultural and political loyalty, she called for the censor's stick. A central part of any national immigration policy, Kellor insisted, had to be government regulation of speech designed to "[stamp] out . . . sedition and disloyalty wherever found."12

Before World War I, Americanizers emphasized instructional programs. However, the threat of war brought out the more coercive elements of this movement.13 In 1916, the Democratic party platform attacked organizations whose object "is calculated and tends to divide our people into antagonistic groups and thus to destroy that complete agreement and solidarity of the people . . . so essential to the perpetuity of free institutions." Woodrow Wilson spoke of the need to suppress those aliens who, despite being "welcomed under our generous naturalization laws to the full freedom and opportunity of America . . . poured the poison of disloyalty into the very arteries of our national life." Henry Clayton, the sponsor of the antitrust bill that bears his name, asserted that immigrants who attacked American institutions "should get off the face of the earth, or at least go back to the country they left."14

The actual declaration of war heightened this concern for national solidarity. Wilson informed potential opponents of his policies that "for us there is but one choice. . .. Woe be to the man or group of men that seeks to stand in our way in this day of high resolution."15 Although no American was immune to this pressure for conformity, progressive nationalists particularly feared that first- and second-generation immigrants were not sufficiently loyal to permit the unified effort necessary for martial triumph. These worries seemed confirmed when the heavily foreign-born American Socialist party refused to support the war effort. In this atmosphere, many Americans confused suppression of the political dissident with suppression of the disloyal immigrant. As William Preston observed, "a fateful and erroneous identification of alien and radical was firmly implanted in the public mind."16

This misunderstanding was particularly evident in the events surrounding Abrams v. United States. Jacob Abrams, an obscure anarchist, was arrested after he scattered leaflets that called on

munitions workers to strike in protest of American interference with the Russian Revolution. During his trial, Federal District Judge Clayton repeatedly reminded the jury of the defendant's alien status and several times asked Abrams, "Why don't you go back to Russia?" When sentencing Abrams and his codefendants, Clayton informed those assembled in the courtroom that "you can never get the American idea into the head of an anarchist."17 Proponents of Glayton's actions shared this belief that only foreigners could hold certain left-wing doctrines. John Wigmore, a prominent progressive legal reformer, determined that "there was nothing spontaneous, nothing American, in [the Abrams defendants]." Abrams and his cohorts were "alien agents, who relied primarily on an appeal to the thousands of alien-born and alien-parented of their own races earning a livelihood in this country."18

Xenophobia continued to be closely associated with censorship after the war. Federal speech policies during the red scare placed far greater emphasis on expelling alien radicals than on imprisoning native political dissidents. The Justice Department informed the Bureau of Investigation (soon to become the FBI) that surveillance "should be particularly directed to persons, not citizens of the United States, with a view of obtaining deportation cases."19 Although the federal government did not force many dissidents to leave the country, Emma Goldman and the Abrams defendants were among the persons sent back to Europe.20

The American Legion, the leading postwar opponent of broad free-speech rights, grew out of the Americanization movement.21 Echoing the concerns of many prewar progressive reformers, that organization promoted state regulations of both commercial and expressive behavior. Legion commanders in the 1920s supported many economic reforms, most notably child welfare legislation, called for a halt to all immigration, particularly of persons "loath to accept our institutions," and demanded restrictions on radical expression. When Legion lobbyists asked Congress to enact peacetime sedition statutes that would "rid our country of this scum who hate our country, our flag, and who refuse to perform their duties," the "scum" in question were typically thought to be the foreign-born. "Com-

munist activities," National Commander Homer Chaillaux confidently asserted, "are led within the United States by those who are to a shocking degree aliens."22

The Administrative State

Although most early twentieth-century intellectuals did not share this overt hostility to aliens or free speech, several prominent progressive thinkers advanced a vision of American society that was largely indifferent to expression rights. Herbert Croly and Walter Lippmann believed that if, as pragmatism asserted, truths could be discovered only by thorough examination of social science data, then only social science experts were capable of making public policy. For this reason, the chief editors of the New Republic sought to redefine democracy in terms of an enlightened bureaucratic elite who would legitimate their power through providing material benefits to all citizens. Croly endorsed "a democracy . . . of selective individuals, who are obliged constantly to justify their selection" by being "devoted to the welfare of the whole people."23

In this new society, the opinions of the unenlightened masses were as relevant to the administrative expert as the opinions of those in Plato s cave were to the philosopher-king. Speech by uninformed laypersons did not contribute to and might even distract from the truth or progress-seeking processes of the scientific method. The Promise of American Life, Croly's main opus, implicitly commented on the importance of free speech by ignoring the subject.24 Walter Lippmann's Public Opinion contended that most people, incapable of developing "sound public opinions on the whole business of government," were far more concerned with government output than government input. Leadership that improved the quality and quantity of consumer goods available to the public, Lippmann claimed, could ignore the diffuse musings of public debate. Elites did not have to respond "to the self-centered opinions that happen to be floating around in men's minds." Lippmann implied that political leaders could restrict expression when doing so might raise the standard of living. Their performance was only judged by whether they were "producing a certain minimum of health,

of decent housing, of material necessities, of education, of freedom, of pleasures, of beauty."25

Lippmann and Croly did oppose the excesses of government censorship during World War I, but they opposed the excesses, not the censorship. The New Republic did not object to restrictions on political dissent that were well-administered, presumably by impartial bureaucrats. Soon after war was declared, that journal proposed that "if we are to have censorship, let it be centralized in competent hands." Lippmann urged Wilson to appoint censors who had "real insight and democratic feeling."26 Only when a number of "super-patriots" sought to repress advocacy of the position that the Allies should declare their war aims while fighting continued did the New Republic unambiguously defend free speech. Intelligent persons, the editors recognized, would never censor any position championed by the wise men at the New Republic.27

The Progressive Origins of the Bad Tendency Test

When speech restrictions were challenged in federal courts, proponents of cultural nationalism and the administrative state asserted that the national and state governments had broad constitutional power to regulate political dissent. Following Pound, they insisted speech be treated no differently than any other activity that might threaten the achievement of social goals. A note in the Harvard Law Review stated that it was "for Congress to judge, in the light of existing conditions, . . . as to the kind and amount of repression necessary." Progressive jurists noted that state power over advocacy, like state power over the economy, was not limited by the specific standards of protection favored by the framers of the First Amendment. That particular speech prohibitions might have been unconstitutional in the past did not affect the national legislature's capacity to respond to the changed circumstances of the present. Charles Warren, chief author of the Espionage Act, reminded Americans "that a course of conduct or acts, under modern conditions, may render vital aid and comfort to the enemy, where similar conduct

would not have done so in earlier days." Because of improvements in communication technology, he claimed, the federal government had to have the power to punish persons who uttered "statements either true or false of existing conditions or facts, the knowledge or belief in truth of which . . . would tend to diminish the effective[ness] of the United States."28

Elected officials, many early twentieth-century jurists declared, were both authorized and best able to estimate the costs and benefits of permitting advocacy of particular doctrines. For this reason, progressive supporters of government censorship endorsed the bad tendency test, a standard permitting legislatures to regulate any speech that might cause some social harm. Day Kimball insisted that congressional decisions limiting political dissent "should be respected by the courts unless palpably unreasonable." Similarly, Wigmore maintained that "a statute does not abridge the constitutional freedom of speech if it forbids A's exhortation of B to do a specific act which would have consequences deemed by the legislature to be deleterious to the commonwealth."29

This interpretation of the constitutional meaning of free speech was most fully developed in the writings of Edward Corwin, a scholar committed to the proposition that the "first requirement of the Constitution of a progressive society is that it keep pace with that society."30 In the War Cyclopedia, a pamphlet written to publicize the government's interpretation of the war and war measures, Corwin declared that the federal "power to pass all laws that are 'necessary and proper' " to achieve national purposes provided a sufficient constitutional foundation for the Espionage and Sedition Acts. "Freedom of the press in war time," he contended, "rests largely with the discretion of Congress."31

Unlike many early twentieth-century conservative thinkers, Corwin thought that Congress could also restrict speech in peacetime. The Constitution, he maintained, vested the national legislature with the general power to ban any utterance that might injure the public. In two articles published immediately after the war, Corwin asserted that Congress . . . may forbid words which are intended to endanger [national] interests if in

the exercise of a fair legislative discretion it finds it necessary and proper to do so."32 Judges, he added, should not overturn legislative decisions on the ground that they believed the expression in question was not sufficiently dangerous. If a doctrine had some tendency to cause social evils, then the people had the constitutional right to forbid its advocacy. The relationship between a given speech and harmful social consequences, Corwin concluded, was "largely in the custody of legislative majorities and of juries, which . . . is just where the framers of the Constitution intended it to be."33

Corwin frequently pointed out that this bad tendency test was the same standard that proponents of sociological jurisprudence applied whenever litigants challenged the constitutionality of any governmental regulation. His contributions to the War Cyclopedia asserted that the "necessary and proper" clause vested Congress with broad power to interfere with both the liberty of speech and the liberty of contract. Courts, he maintained, must "sustain any legislation which is reasonably calculated to promote the general welfare, if there is no other objection to it other than its effect on private rights."34 Indeed, the general progressive revulsion against all individual liberties was the first premise of Corwin's attack on constitutional free-speech rights. While under "the uncomplicated conditions of frontier life" one might have been able to talk meaningfully of "inalienable rights," he claimed that under modern conditions, "the pursuit of happiness has become a joint-stock enterprise in which the welfare of all is embarked.35 Corwin opposed "the curtailment of legislative discretion by definitive, unbending constitutional limitations," whether in the name of an individual's expression or property rights.36

Virtually every progressive indictment of judicial activism on behalf of expression rights repeated this assertion that the freedom of speech had no higher constitutional status than the freedom of contract. J. P. Hall, dean of the University of Chicago Law School, claimed that "private property, liberty of contract, of occupation, free speech, even life itself, are not absolute goods to be preserved rigidly under all circumstances alike." "The value and the protection they receive," he insisted, "are

always relative to the dominant social needs." In a frequently cited article, Warren maintained that the due process clause of the Fourteenth Amendment should be used only to protect an individual's procedural rights at trial. Judicial declarations that found personal economic and expressive freedoms in that provision "awaken serious thoughts as to whether there is not danger now that the 'liberty' of the states is being unduly sacrificed to this new conception of the 'liberty' of the individual." For these reasons, progressive defenders of Supreme Court opinions sustaining restrictions on political dissent concluded that those decisions were right for the same reason that the Lochner case was wrong. "Those who have often condemned judicial refusal to give effect to so called 'liberal' legislation, because the refusal seemed to them based upon individual opinions of desirability," Day Kimball declared, "should not reverse their position now that the shoe pinches the other foot."37

This progressive attack on judicial activism on behalf of expression rights not only struck at all the foundations of conservative libertarian jurisprudence, but it also seemed even to vitiate the limited speech-protective claims made by many early twentieth-century conservative opponents of free speech. As noted in chapter 1, such conservatives as G. P. Garrett, Pierce Butler, and Edward Sanford suggested that peacetime speech restrictions could only forbid the advocacy of doctrines attacking the principles of republican government. Corwin and others claimed that elected officials could forbid the advocacy of any doctrine that might have a bad tendency. Progressive opponents of expression rights did not think that states could bar antirepublican speech that lacked a bad tendency, but this concession was worthless in light of their claim that courts should rarely, if ever, challenge a legislative decision that advocacy of certain doctrines might threaten other social interests. Indeed, the greatest strength of the new attack on judicial activism on behalf of free speech was that the principles underlying the bad tendency test could be endorsed by persons opposed to the new philosophical attack on free speech. Whatever one considered the constitutional meaning of free speech, Corwin and others believed that such rights had to be vindicated in the legislature, not the courtroom.

The New Philosophical Defense of Free Speech

Although the fundamental principles of progressive thought supported represssive doctrines and practices, they did not inexorably lead early twentieth-century reformers to propose or tolerate state censorship. Pragmatism also provided a foundation for a new, civil libertarian defense of expression rights. Long before the United States entered World War I intellectuals associated with the grassroots, communitarian side of progressivism had insisted that democratic societies must foster diversity and participation.38 Addams, Dewey, Brandeis, and others maintained that the scientific method would not function efficiently and the community would not be fully unified unless the polity encouraged citizens to express a wide variety of opinions on matters of public interest.

The Nature of a Democratic Society

Figuratively speaking, September 18, 1889, might be considered the birth date of the civil libertarian tradition. On that day, Jane Addams moved into Hull-House. This famous settlement house was designed to facilitate dialogue between native-born Americans and recently arrived immigrants. "It was the function of the settlements," she declared, "to bring into the circle of knowledge and fuller life, men and women who might otherwise be left outside."39 Unlike proponents of cultural nationalism, Addams believed that communities would profit if they promoted varied life-styles, customs, and cultures. She asserted that "the foundation and guarantee of Democracy" was "diversified human experience." "To continually suspect, suppress or fear any large group in a community," she insisted, "must finally result in a loss of enthusiasm for that type of government which gives free play to the self-development of a majority of its citizens."40 Unlike proponents of the administrative state, Addams thought that citizens should not be passive consumers of material goods. In her view, "good government [was] no substitute for self-government," and "modern social science" had refuted the

notion "that the people must be led into the ways of righteousness by the experience, acumen and virtues of the great man."41

Addams regarded "democracy" as "an attempt at self-expression for each man," which required at a minimum "that different policies be freely discussed and that each party shall have an opportunity for at least a partisan presentation of its contentions." Democratic societies, in her view, established and encouraged citizens to take advantage of their broad free-speech rights. For this reason, she preferred political bosses to impartial experts because "the former at least are engaged in that great moral effort of getting the mass to express itself."42 At Hull-House, every radical in the city of Chicago was permitted to advocate his or her particular programs, and the settlement sponsored various clubs in which persons could learn about and discuss the political and social issues of the day.43

Like other progressives, Addams was quite concerned with the breakdown of traditional communal life. However, she thought that in the twentieth century, expression of diverse opinions was essential to the formation of lasting social bonds. "It is difficult to see how the notion of a higher civic life can be fostered," she claimed, "save through common intercourse." These frequent interactions created the mutual values necessary for harmonious communal existence. When "men, however far apart in outward circumstances . . . meet as individuals beneath a friendly roof [and] open their minds to each," Addams declared, "their 'class theories' [will be] insensibly modified by the kindly attrition of personal acquaintance."44

John Dewey shared this desire to create a political community of active and diverse citizens. A democratic society, he proclaimed, was one that made "provision for participation in its good of all of its members on equal terms" and encouraged the "interaction of the different forms of associated life." Like Ad-dams, he thought democracy meant "diversification" and called for communal institutions that gave all citizens "a responsible share . . . in shaping the aims and policies of the[ir] social groups."45 Diversity and participation were valuable because they were necessary to the effective functioning of the scientific method, a method Dewey identified with both pragmatism and the democratic process. With respect to both science and

politics, Dewey observed, "lack of the free and equitable intercourse which springs from a variety of shared interests makes intellectual stimulation unbalanced. Diversity of stimulation means novelty, and novelty means challenge." He insisted that "every combination of human forces" has "its own unique and ultimate worth."46

To reap the benefits of heterogeneity, both the technical and democratic communities had to protect and encourage expression. "It is the nature of science," Dewey claimed, "not so much to tolerate as to welcome diversity of opinion." He added that "freedom of inquiry, toleration of diverse views, freedom of communication" were "involved in the democratic as in the scientific method."47 Believing that "the democratic method is persuasion through public discussion," Dewey continually stressed the importance of a system of communication adequate to modern industrial society. "The essential need of modern life," he argued, "is the improvement of the methods and conditions of debate, discussion and persuasion." At the very least, advances in speech technology would assist the "constant watchfulness and criticism by citizens" that was necessary for "a state [to] be maintained in integrity and usefulness."48

Dewey agreed with those who thought that open public debate would eventually promote social consensus on fundamental principles. Persons, he argued, "must have an equable opportunity to receive and to take from others" if they were "to have a large number of values in common."49 However, in his view, the real significance of the scientific method was its capacity to further civic unity by adjudicating the factual bases of public controversies. "The importance of 'methods of inquiry,' " Dewey observed, "is that they bring new facts to light and by doing so establish the basis for consensus of beliefs." Once the scientific method disclosed the probable consequences of various policies, citizens could easily identify the measures that best advanced the welfare of the community. By "publically and scientifically weigh[ing]" conflicting claims, civic discourse enabled "the public interest [to] be disclosed and made effective." Empirical investigation would settle political disputes "in the interest of the widest possible contribution to the interests of all," rather than in the narrow interest of a particular social class.50

Louis Brandeis was the third prominent progressive to advance this pluralistic vision of American public life. His writings urged adherence to "the democratic principle" that "each people has in it something of peculiar value which it can contribute to that civilization for which we are all striving." "America," he claimed, "has believed that in differentiation, not in uniformity, lies the path of progress."51 Throughout his life, Brandeis advocated policies that would best contribute to "the making of men and women who shall be free self-respecting members of a democracy." These self-respecting individuals actively participated in their governance and were not willing to defer to a bureaucratic elite that might supply them with more consumer goods. "Among a free people," he insisted, "there can be no self-constituted body of men possessing the power to decide what the action of the whole people shall be."52

Citizens of democratic societies enjoyed and frequently exercised broad expression rights. "Differences in opinions," Brandeis maintained," are not only natural but desirable where the question is difficult; for only through such differences do we secure the light and fuller understanding which are necessary to a wise decision." For this reason, he urged communities to reserve public areas for speech making "in every park." Such policies would best unite American society. "Unity," Brandeis declared, "implies interest and participation, [not] absence of discord."53

Other important early civil libertarians contributed to this understanding of democratic society. Ernst Freund, for example, promoted administrative law standards that would prevent specialized agencies from choking off popular participation in politics. In contrast to Lippmann and Croly, he thought that bureaucratic expertise "ought to be confined to non-controversial matters of a technical character." "Had a commission of economy and efficiency presided over American government from the beginning," Freund observed, "it would tax the imagination to think of the millions that might have been saved from waste." But that benefit could have occurred only at the cost of "that spirit of individualism, that glamour of liberty, that made American institutions attractive to aliens coming to this country."54

Horace Kallen, one of Dewey's former students, declared that "democracy dares to endow each citizen with the task that Plato . . . left to heartily trained and expert few." As he noted elsewhere, "the factual equivalent for democracy is social heterogeneity and intellectual diversification." Randolph Bourne, another former student of Dewey, identified "all human progress" with "novelty and non-conformity." He deplored the "universal American practice of organizing our institutional life in every department with Boards of Governors, Directors, and Trustees" as demonstrating that the "spirit of American government" was "inherently oligarchic." "Democracy," Bourne feared, "may come to mean that the individual feels himself somehow expressed . . . in whatever the crowd chooses to do."55

The democratic vision of early civil libertarians preserved many insights of the conservative libertarian past. Both the civil and conservative libertarian traditions considered political and industrial paternalism as the greatest threat to human development. Sumner anticipated the gist of Addams's attack on the administrative state when he claimed that the way to be charitable was to "help a man to help himself, by opening the chances around him." Increasing participatory opportunities, he maintained, put persons "in a position to add to the wealth of the community by putting new powers in operation to produce."56 No conservative libertarian would have objected to either Bourne's assertion that "the modern ethic demands the development of the personal potentialities of every human being" or Dewey's claim that "the supreme test of all political institutions and industrial arrangements shall be the contribution they make to the all-around growth of every member of society."57 Late nineteenth-century intellectuals recognized the value of diversity as well. Spencer, for example, declared that "the entire assemblage of societies thus fulfills the law of evolution by increase of heterogeneity."58

Early civil libertarians also maintained the conservative libertarian tradition's affinity for the small community as the forum where citizens could most effectively express and govern themselves. Dewey contended that the system of freedom of expression would function only if "political organization" was "on the

basis of small units, small enough so that all its members could have direct communication with one another and take care of all community affairs." "Democracy," he insisted, "must begin at home, and its home is the neighborly community." Kallen thought that "in the familial relations of the village community . . . there prevails a significant democracy which is the dimmed original and minatory criterion of all larger forms."59 Brandeis particularly was known for his opposition to large organizations; his major work was appropriately titled The Curse of Bigness. In this and other writings he argued that large organizations necessarily outstripped the capacities of those who ran them, discouraged innovation, and failed to offer significant scope for mass participation.60 Although Brandeis usually defended governmental efforts to regulate the economy, he supported the Court's decision to strike down the National Recovery Act because he felt that the early New Deal gave too much power to the national government. Brandeis told federal officials that such "broad powers cannot be centralized in the Federal Government." “As for your young men," he concluded, "tell them to go back to the States. That is where they must do their work."61

These similarities suggest that, contrary to the central theme of this book, American libertarians have historically shared a common vision of the nature of a democratic society. But proponents of the single free-speech tradition do not point to this mutual commitment to participation, diversity, and small communities when defending their monolithic interpretation of libertarian theory in the United States. Rather, as noted in the introduction, contemporary civil libertarians insist that all previous defenders of free speech shared their understanding of the nature of free-speech rights and the relationship between the systems of private property and free speech. In these areas, early civil libertarian thought represented a fundamental break with the conservative libertarian tradition.

Progressive thinkers refused to defend the freedom of speech "as a merely individual right." "Democratic ideals," Brandeis insisted, "cannot be attained through emphasis merely upon the rights of man."62 Instead, the new generation of libertarians maintained that the proper foundation of the philosophical defense of expression rights was the social interest in

the spread of public truth and intelligence. Addams asserted that it was necessary to abandon "the eighteenth century philosophy upon which so much of our democratic theory depends." Persons, she said, must look at "social matters from the social standpoint."63 Dewey declared that "liberalism has to assume the responsibility for making it clear that intelligence is a social asset and is clothed with a function as public as its origin."64 Indeed, Brandeis suggested that public discussion of diverse political opinions so benefited the community that expression was more a social obligation than a personal right. The "full and free exercise of [free speech] by the citizen," he maintained, "is ordinarily also his duty; for its exercise is more important to the nation than it is to himself."65

Early civil libertarians also offered a new interpretation of the economic prerequisites of a functioning system of free expression. Although the scientific method did not require that such a conclusion be drawn,66 these supporters of expression rights asserted that government had to regulate economic life if it wished to protect and foster discussion of important public questions. Kallen thought that society must restrict commercial freedom "to provide the conditions under which actual cultural groups might attain . . . cultural perfection." His fellow progressive pluralists agreed that government should abandon laissez-faire economic policies that once promoted political equality because such practices no longer served that purpose. "It is sheer perversion," Dewey claimed, "to hold that there is anything in Jeffersonian democracy that forbids political action to bring about equalization of economic conditions in order that the equal right of all to free choice and free action be maintained." In his view, "so cialized economy is the means of free individual development as the end."67

More generally, early civil libertarian reformers called for a new conception of positive liberty to replace the older idea of laissez-faire." Mere negative freedom," Bourne declared," will never do as a twentieth century principle." Dewey insisted that "organized society must use its powers to establish the conditions under which the mass of individuals can possess actual as distinct from merely legal liberty." Thus, government had to regulate commercial and educational institutions so that all citi-

zens would be provided with the wherewithal necessary to use meaningfully their more fundamental liberties. Persons, Dewey contended, enjoyed "effective freedom" only if they had "(1) positive control of the resources to carry purposes into effect, possession of the means to satisfy desires; and (2) mental equipment with the trained powers of initiative and reflection requisite for circumspect and far-seeing desires."68

Early civil libertarians thought that several elements of unregulated industrial life threatened the functioning of democratic societies. In their view, modern industrial conditions created an economic dependence inconsistent with political freedom. Brandeis observed that a person cannot "be really free who is constantly in danger of becoming dependent for mere subsistence upon somebody and something else than his own exertion and conduct." "If the Government permits conditions to exist which make large classes of citizens financially dependent," then government should assume, "or cause to be assumed by others, in some form the burden incident to its own shortcomings."69 Progressive defenders of free speech claimed that material deprivations left most persons "so overburdened with toil that there is no leisure nor energy left for the cultivation of the mind." "Freedom of thought," Dewey noted, is "next to impossible for the masses of men so long as their economic conditions are precarious, and their main problem is to keep the wolf from their doors."70 Governmental oversight of business conditions was, thus, needed to ensure that persons had the time as well as the independence necessary for effectively exercising their free-speech rights. Brandeis claimed that in a democracy all persons had a right to "free time when body and mind are sufficiently fresh to permit of mental effort."71

Finally, early civil libertarians maintained that unmanaged economic inequality enabled well-off persons to monopolize the material and cultural resources necessary to effective freedom. Progressive intellectuals claimed that these goods were social in nature and should therefore be distributed equally. "The common stock of intellectual enjoyment," Addams declared, "should not be difficult of access because of the economic position of him who would approach it."72 In the hands of one social group these assets could be used to shape the very

preferences that persons brought into the marketplace of ideas. Dewey declared that in "back of the appropriation by the few of the material resources of society lies the appropriation by the few in behalf of their own ends of the cultural, the spiritual, resources."73 Thus, progressive defenders of free speech insisted that, at the very least, government had to regulate economic life to keep both the press and the academy out of the exclusive control of one class.74

Early Civil Libertarian Activity

In spite of their call for greater public solicitude for expression rights, Addams, Dewey, Brandeis, and other early civil libertarians did not play an active role in local free-speech fights during the progressive era. However, these early civil libertarians articulated their speech-protective vision of democratic societies in several prewar national controversies. The political debate that most united them concerned the place of the immigrant in American society. While cultural pluralists did not explicitly claim that foreign-born residents had the right to free speech, a right that the Americanization movement did not question until World War I,75 they maintained that communities would benefit from the presence of persons with different cultural attachments. Thus, civil libertarians involved in the settlement movement encouraged new arrivals to "preserve and keep . . . whatever of value their past life contained." "The problem," Dewey declared, "is not to reduce them to an anonymous and drilled homogeneity, but to see to it that all get from one another the best that each strain has to offer from its own tradition and culture." Addams asserted that "democratic government . . . should include the experiences and hopes of all the varied people among us."76 Implicit in these claims was the premise that immigrants should be permitted and encouraged to express their distinctive political and cultural commitments. Americans, pluralists recognized, would only realize the benefits of heterogeneity if these diverse perspectives were made public.

The early American Zionist movement was another haven for cultural pluralists. Although many assimilated Jews believed

that one could not be loyal to both an American and a Jewish state, progressive Zionists argued that an Israeli nation would encourage a flowering of Hebraic culture in the United States. Jews active in the Zionist movement would then contribute more to both nations.77 Brandeis helped lead this faction of American Judaism. In a number of speeches he declared that his "approach to Zionism was through Americanism"78 and Americanism meant cultural pluralism. Brandeis insisted that "America has believed that each race had something of peculiar value which it can contribute to the attainment of those high ideals for which it is striving." Hence, social institutions should "preserve for America the good that is in the immigrant and develop in him the best of which he is capable." "The new nationalism adopted by America," he concluded, "proclaims that each race or people, like each individual, has the right and duty to develop, and that only through such differentiated development will high civilization be attained."79

In the second decade of the twentieth century, Randolph Bourne and Horace Kallen contended that cultural pluralism should be the public philosophy of the United States. Their writings proposed that America consider itself the "orchestra of mankind," a "cosmopolitan federation of national colonies."80 "Its form," Kallen declared, "would be that of a federal republic; its substance a democracy of nationalities." Such a society would achieve "the perfection of men according to their kind" by "cooperating voluntarily and autonomously through common institutions in the enterprise of self-realization."81 These heterogeneous communities would significantly enrich their members' lives. "Meeting now with this common American background," Bourne envisioned, "all of them may yet retain that distinctiveness of their nature, cultures and their national spiritual slants. They are more valuable and interesting to each other for being different."82

Both younger and older cultural pluralists agreed that immigrants could best contribute to American society by retaining and contributing to their particular cultures. In contrast to their political opponents, who feared that such diverse expression would undermine the American way of life, early civil libertarians saw immigrant speech as a means for revitalizing or strength-

ening native institutions. Bourne maintained that "it is not the Jew who sticks proudly to the faith of his fathers and boasts of that venerable culture who is dangerous to America, but the Jew who has lost the Jewish fire." "To be good Americans," Brandeis told a Zionist group, "we must be better Jews."83

Early civil libertarians raised free-speech issues more straightforwardly in other prewar reform efforts. Throughout his life, Dewey maintained that "it is through education in its broadest sense that the right of thought and sympathy become effective." The school, he stated, was where democratic citizens acquired the skills necessary "to judge men and measures wisely and to take a determining part in the making as well as obeying laws." Because students mastered these abilities by speaking freely in their classrooms, Dewey urged educators to discourage rote memorization of historical data and develop participatory activities that challenged their pupils' creative talents. "A spirit of free communication, of interchange of ideas, suggestions, results, both successes and failures of previous experiences," he asserted, "becomes the dominating note of the recitation."84 Dewey's philosophical allies also endorsed educational policies that prepared students to express themselves in both the classroom and the broader community. Bourne, for example, declared that schools must encourage pupils to be "uneasy, restless, [and] questioning," in order to make "them fit . . . to administer a free society."85

Brandeis established his national reputation in the fight for free speech in the workplace. "Rule by the people," he contended, "involves industrial democracy as well as political democracy." Because "the greatest developer is responsibility," Brandeis insisted that the "aim" of working people should be "participation in responsibility for the conduct of business; and . . . the eventual assumption of full responsibility—as in cooperative enterprise."86 For employees to realize these ambitions, their speech had to be effective as well as free. Brandeis argued that industrial democracy meant "not only a voice, but a vote,—not merely a right to be heard, but a position through which labor may participate in management."87 Governance of the workplace was another of Dewey's major themes. In his "Freedom of Thought and Work," he declared that "freedom

of speech and of the franchise is now significant because it is part of the struggle for freedom of mind in industry, freedom to participate in its planning and conduct." Addams agreed. "The democratic ideal," she added, "urges the workmen to demand representation in the administration of industry."88

Early civil libertarians became directly involved in free-speech conflict when the government began arresting political dissidents in the summer of 1917. More than a year before Chafee published his first thoughts on free speech, Dewey wrote a series of articles for the New Republic attacking censorship laws and practices. Although he did "not [question] the importance of social solidarity, of unity of action, in war times," Dewey "denied . . . the efficacy of force to remove disunion of thought and feeling." Indeed, he charged that cultural nationalists who "permitted themselves such unbridled denunciation of our immigrant population" during the war were guilty of obstructing the national unity they professed to foster. Americanizers, Dewey stated, "are not morally innocent of promoting disunion through the distrust they have sown of all who dared to differ from them in matters of policy."89

Dewey's New Republic articles rejected earlier claims that personal expression rights could be maintained against the general welfare. There was "something rather funny," he thought, "in the spectacle of ultra-socialists rallying to the banner of Elihu Root with its inscription of individual rights and constitutional guarantees." Instead, he emphasized the pressing social importance of political expression. "Attempts to repress discussion of unpopular ideas and criticisms of governmental action foster[ed] intellectual inertness," and this "absence of thought, apathy of intelligence [was] the chief enemy to freedom of the mind."90

Dewey's first discussion of wartime censorship, published on September l, 1917, declared that he was not "specifically concerned lest liberty of thought and speech seriously suffer among us." However, his attack on the spirit of repression, quoted above, clearly demonstrated that Dewey never intended to slight the value of free expression. Rather, he merely underestimated the likelihood that elected officials would seriously attempt to interfere with verbal opposition to war policies· "The

fight [for free speech]," that essay continued, "was carried against so much greater odds in the past and still made its way, so that I cannot arouse any genuine distress on this score."91 Two months later, in light of subsequent events, Dewey declared that his comments seemed "strangely remote and pallid." He called on liberal supporters of the war "to be more aggressive than they had been" in defending the rights of political dissenters. Such action was necessary to preserve the momentum for progressive reform once peace returned. Those who "passively tolerated invasions of free speech and action," Dewey prophetically con-eluded, were "preparing the way for a later victory of domestic Toryism."92

Kallen and Bourne responded to wartime calls for repression by insisting that the argument for cultural pluralism was also the argument for free speech. "The contradictory philosophies of Americanism," Kallen wrote, created an environment in which "repression overruled reciprocity." Wartime censorship only exacerbated national divisions. As a result, Kallen observed, postwar America consisted of "great groups of people thrown back upon themselves, rendered fearful of their neighbors, fearful of each other, fearful of government."93 Bourne opposed participation in World War I because he believed that "willing war means willing all the evils that are organically bound up with it."94 Like earlier conservative anti-imperialists, he thought that war inevitably caused suppression of free speech. Bourne's famous phrase—"war is the health of the State"—meant that militarism created an environment wherein government could "coere[e] into obedience the minority groups and individuals which lack the larger herd sense."95 Although Bourne attacked most progressive intellectuals for their willingness to tolerate restrictions on political dissent during World War I, he also criticized Dewey's belief that Americans could fight a foreign war while maintaining domestic liberties. His mentor, Bourne claimed, had wrongly "assumed that the war-technique can be used without trailing along with it the mob-fanaticism, the injustice and hatreds, that are organically bound up with it."96

Brandeis did not speak on wartime censorship until the constitutionality of the Espionage Act reached the Supreme Court in

early 1919. At first he sustained decisions that affirmed the convictions of political dissenters, but he regretted those votes almost immediately. He privately told his daughter that the red scare was a "disgraceful exhibition;—of hysterical, unintelligent fear." Within a year, Brandeis had decided to "let the future know what we were not allowed to say in the days of the war."97 "The fundamental right of free men to strive for better conditions though new legislation will not be preserved," he declared in Pierce v. United States, "if efforts to secure it by argument to fellow citizens may be construed as criminal incitements." Brandeis excoriated "those exercising judicial power" who were punishing expression "merely because the argument seems to [them] to be unfair in its portrayal of existing evils, mistaken in its assumptions, unsound in reasoning or intemperate in language."98 Seven years later, he penned the most inspiring statement of the fundamental principles of early civil libertarian thought. "Those who won our independence," Brandeis declared,

believed that the final end of the State was to make men free to develop their faculties; and that in government the deliberative forces would prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly, discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.99

The Whitney concurrence was a brilliant exposition of the new philosophical defense of political dissent. However, the famous passages of Brandeis's opinion contained no original justifications for judicial activism on behalf of expression. While Brandeis waxed poetic on the virtues of free speech, he offered no principled challenge to the new constitutional attack on public debate. In particular, as the next section points out, Brandeis failed to explain why judges in democratic societies could second-guess an elected legislature's decision that other social interests outweighed the social interest in free speech.

The Constitutional Dilemmas of Early Civil Libertarianism

Beneath the brilliance of the Whitney concurrence lurked difficulties that haunted early civil libertarian efforts to develop a new constitutional defense of free speech. The opinion began not with bold assertions of what the constitutional framers thought,100 but with substantial reservations about judicial capacity to protect expression rights. In contrast to conservative libertarian jurists, Brandeis did not think courts were authorized to safeguard individual freedoms. He specifically contended that the due process clause of the Fourteenth Amendment only limited the procedures that state governments could use when they sought to deprive a person of life, liberty, or property.101 Moreover, after rejecting the traditional constitutional defense of free speech, Brandeis refused to articulate a workable alternative. He merely proclaimed that speech was the same sort of right the Court was now committed to protecting. The judicial obligation to respect precedent, he concluded, overrode the otherwise superior logic of the new constitutional attack on free speech.

"Despite arguments to the contrary which had seemed to me persuasive," Brandeis declared, "it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as procedure." For this reason, and this reason only, he admitted that "all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States." "The right of free speech, the right to teach and the right of assembly," he added, "are, of course, fundamental rights."102 In other words, such judicial decisions as Lochner v. New York implicitly held that the Fourteenth Amendment also safeguarded an individual's expression rights.

Brandeis recognized that various social interests might justify legislative restrictions of conduct protected by the due process clause. "The right of free speech and assembly," he noted, "are not in their nature absolute." They were "subject to restriction . . . in order to protect the State from destruction or from serious injury." Normally, he maintained, "the legislature

must obviously decide . . . whether a danger exists which calls for a particular protective measure." This was, as noted above, a basic principle of progressive legal thought, one by which Corwin and others had justified judicial deference to legislative judgments that commercial and speech restrictions were in the public interest. Brandeis proceeded, however, to claim that "the enactment of the statute cannot alone establish the facts which are essential to its validity"; judges had the right to make a de novo determination as to whether a particular regulation sufficiently advanced social interests to justify restraining an individual's freedom. "Prohibitory legislation," he observed, "has repeatedly been held invalid, because unnecessary, where the denial of liberty involved was that of engaging in a business." As authority for this proposition, he cited five decisions in which the Court struck down economic regulations: Frost v. R. R. Comm. of California, Weaver v. Palmer Bros. Co., Jay Burns Baking Co. v. Bryan, Pennsylvania Coal Co. v. Mahon, and Adams v. Tanner. Yet in each case Brandeis had issued or signed a blistering dissent attacking the majority opinion for failing to realize that the judicial "function" was only "to determine in light of all facts which may enrich our understanding . . . whether the measure . . . transcends the founds of reason," so that "legislators acting reasonably could not have believed it to be necessary or appropriate for the public welfare."103 Thus, with studied irony Brandeis concluded the first part of the Whitney concurrence by noting that "the power of the courts to strike down an offending law is no less when the interests involved are not property rights, but the fundamental personal rights of free speech and assembly."104

In short, Brandeis's defense of constitutional speech rights rested on principles he believed to be false. The first passages of the Whitney concurrence endorsed the underlying premises of the new constitutional attack on expression rights. Brandeis agreed that courts should respect legislative judgments that the estimated costs of certain utterances outweighed their expected benefits, and he continued to believe that the due process clause should not protect substantive liberties. The only significant difference between the Whitney concurrence and Corwin's postwar essays was Brandeis's insistence that civil lib-

ertarians should not hesitate to rely on the conservative libertarian defense of free speech as long as proponents of laissez-faire continued to promulgate the conservative libertarian defense of private property. Brandeis might never have written his impassioned plea for tolerance had the Court recognized the force of his dissents in freedom of contract cases.

The ambiguity of the Whitney concurrence reflected the central dilemma of early civil libertarian constitutional thought. Dewey, Addams, Brandeis, and others argued that democratic societies would protect and promote free speech in order to encourage diversity and citizen participation. They also thought, however, that a society was democratic only if the people's elected representatives determined what social interests would he protected and promoted. "The community," Dewey declared, "is, through legislative action, the seat of social experimental stations."105 Both at the bar and on the bench Brandeis demanded that constitutional issues be determined in light of the actual facts106 and that courts, on the basis of those facts, should determine only whether the legislature's conclusions were minimally reasonable. His judicial opinions frequently declared that "there must be power in the States and the Nation to remold, through experimentation, our economic practices and institutions to meet changing social and economic needs."107

Because they shared Brandeis's understanding of institutional responsibilities in democratic societies, early civil libertarians experienced similar difficulties when defending judicial solicitude for expression rights. Jurists sympathetic to Dewey's vision of a democratic society were not simply troubled by the Fourteenth Amendment's failure to mention expression explicitly. They had the same difficulty defending judicial efforts to limit federal censorship even though the First Amendment specifically barred congressional abridgment of free-speech rights. Proponents of sociological jurisprudence opposed judicial activism on behalf of any individual right, even rights clearly guaranteed by the Constitution. As Brandeis implied in Whitney , federal and state elected officials should have the power to act when they determined that the exercise of free-speech rights threatened other important social interests. This premise would consistently derail early civil libertarian efforts to justify

judicial solicitude for expression rights. Even when they supported claims made by convicted political dissidents, progressive jurists inevitably concluded that, if the citizens of democratic communities had really wanted to forbid the utterance in question, "the only meaning of free speech" seemed to be "that they be given their chance and have their way."108

Henry Schofield's Illibertarian Libertarianism

The work of Henry Schofield, a professor at Northwestern University Law School, foreshadowed the difficulties early civil libertarians faced in developing a constitutional defense of expression rights. At a 1915 conference promoting free speech sponsored by the American Sociological Association,109 Schofield delivered a paper that asserted the First Amendment protected expressions of "truth . . . on matters of public concern" and "any allowable opinion on any matter of public concern which any fair-minded man could or might form from the facts."110 Although he endorsed older claims that "judges only declare pre-existing law" and specifically asserted that the First Amendment should be interpreted in accordance with the "true view of the original declaration,"111 Schofield imputed progressive understandings of constitutional theory to the framers. His was the first effort to construct libertarian constitutional arguments from the social interest in free speech.

Schofield recognized that government could ordinarily regulate such interests as property; they existed "for the private profit and benefit of the owner." He suggested, however, that speech merited different treatment because the freedom of speech and the freedom of contract were different kinds of rights. A person's expression rights, Schofield emphasized, existed as a "trust for the educational profit and benefit of the public," "not for his own private profit and benefit."112 Thus, courts served public interests when they protected expression rights. In particular, free speech was an important element of the democratic process established by the constitutional framers. The "foundation stone of the law of the land," Schofield declared, was the principle "that the governed are the master

and the governors the servants." In its role as servant, government had no power to limit either criticisms of its performance or suggestions of alternatives.113 Not only did the Constitution bar federal attempts to limit the freedom of speech, but also "the right to publish the truth on matters of national public concern [was] one of the privileges and immunities of the citizens of the United States protected from abridgment by any state."114

Chafee declared that Schofield's analysis of expression rights was "the best [prewar] discussion of the legal meaning of that subject."115 By relying on the social interest in open public debate, however, Schofield actually narrowed libertarian interpretations of First Amendment freedoms. Although his article was advertised and treated as a defense of expression, Schofield frequently rejected as too protective of speech the positions essayed by conservative libertarian treatise writers. For example, as noted in chapter l, late nineteenth-century treatise writers claimed that persons had a constitutional right to make any political utterance they honestly believed was true. Schofield referred to this "judge-made liberty of the press to publish defamatory falsehood on matters of public concern" as "unauthorized judicial legislation destructive of men's reputations and property." In sharp contrast to Burgess, who declared that congressional speech regulations were ordinarily ultra vires, Schofield maintained that the Constitution vested the national government with substantial power to regulate political commentary. Indeed, he concluded his article by noting a number of social interests that made federal and state legislation curbing speech rights both "desirable and necessary."116

More ominously, Schofield failed to clarify the constitutional relationships between free speech and lawless conduct. He did declare that the First Amendment was intended to abolish the common law crime of seditious libel, which he interpreted as forbidding advocacy that was intended or had a tendency "to create and diffuse among the people an ill opinion of existing public officers, government, institutions, and laws."117 He also asserted that speech could not be punished "till it issues in some overt acts against the public peace and order."118 This standard of protection, however, proved illusory. Schofield thought that "all publications [were] overt acts."119 "Anarchist publications

teaching and advising the use of force," "publications teaching and advising the practice of polygamy," and "indecent, vulgar, and vile language concerning any religion" were all "overt acts against peace and good order."120 Schofield endorsed statutes that criminalized all speech "seriously endanger[ing] the public peace."121 His only clear restriction on state power was that "publication[s]" could not be considered "overt acts against peace and good order simply because of their bad tendency as opinion-makers."122 In other words, Schofield believed that government had no right to forbid speech that merely affected political opinions; speech could be punished, however, if it had some vaguely defined tendency to cause various social evils.

Schofield never attempted to encourage judicial efforts to alter the scales after the legislature had determined that some other social interest outweighed the social interest in free speech. This oversight proved particularly important because wartime speech restrictions were ostensibly designed to further important government policies. Thus, the Espionage Act spoke of "interfere[nee] with the operation of the military or naval forces of the United States" and "obstruct[ion]" of "the recruitment or enlistment services of the United States." The Sedition Act barred speech that "promote[d] the cause of [American] enemies" or "advocate[d] any curtailment of production . . . of any thing . . . essential to the prosecution of the war."123 These were just the sort of interests that progressive scholars like Schofield agreed warranted limiting expression rights. At least, this was the position taken by Justice Oliver Wendell Holmes, Jr., the jurist who most inspired sociological jurisprudence.

The Myth of Holmes

On March 3, 1919, the Supreme Court handed down its first major decision on the constitutional meaning of free speech. In Schenck v. United States, the justices unanimously held that the Espionage Act of 1917 was constitutional and that there were no valid First Amendment objections to the conviction of several socialists who had passed out leaflets protesting the draft. In his unanimous opinion, Justice Holmes declared that the Constitution did not protect words that might "cause a clear and present

danger" of "substantive evils that Congress has a right to prevent."124 The repressive implications of Schenck were confirmed a week later when the justices handed down their decision in Debs v. United States.125 In that case, a united court held that speakers could be constitutionally punished under the Espionage Act for asserting personal opposition to the war and approving the actions of persons "who had been convicted of aiding and abetting another in failing to register for the draft." Justice Holmes again wrote for the Court: He declared that a jury could have found these sentiments had a "reasonable tendency and reasonably probable effect to obstruct the recruiting service."126

Chafee claimed that those "decisions . . . came as a great shock to forward looking men and women"; moreover, "they were especially grieved that the opinions . . . were written by the Justice who for their eyes had long taken heroic dimension."127 Yet American libertarians had no reason for surprise. Holmes had always been the leading authority for the narrowest interpretations of the constitutional meaning of free speech. He wrote the Court's opinion in Fox v. Washington, which held that states could punish advocacy of nudism. In other cases, Holmes rejected the good faith defense in libel suits, insisted that persons had no fight to speak on public property, and suggested that the First Amendment merely rendered constitutional Blackstone's rule of no prior restraint.128 Furthermore, no progressive jurist had developed a broad constitutional defense of expression rights that was consistent with Holmes's dissent in Lochner v. New York, a dissent that claimed "the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion."129 Perhaps Chafee hoped Holmes could do better.

In the fall of 1919, Holmes seemed to do better. Dissenting in Abrams v. United States, he demonstrated that the clear and present danger test could protect unpopular speakers.130 "It is only the present danger of immediate evil or an intent to bring it about," his opinion declared, "that warrants Congress in setting a limit to the expression of opinion." Jacob Abrams's attack on national policy toward the Soviet Union did not satisfy this standard. Holmes did not "see how anyone [could] find the intent

required by the [Sedition Act] in any of [his] words." He interpreted that statute as only prohibiting efforts to "impede the United States in the war that it was carrying on," and he argued "it was evident that the only object of [Abrams's] paper [was] to help Russia and stop intervention there."131 More important, after dismissing the particular case before him on this statutory ground,132 Holmes closed with a dramatic assertion of the fundamental status of expression rights in the American constitutional scheme.

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our constitution.133

Early civil libertarians cheered this burst of eloquence. Chafee stated that it was a "magnificent exposition of the philosophic basis" of constitutional protection for free speech.134 Max Lerner and others have described this passage as "the greatest utterance on intellectual freedom by an American, ranking in the English tongue with Milton and Mill."135

Unfortunately, upon close examination, virtually all of Holmes's reputation as the great modern defender of civil liberty rests on the last paragraph of the Abrams dissent.136 Although some scholars claim that Holmes was first convinced of the importance of broader constitutional protection for expression in the summer of 1919137 and others maintain that the circumstances of the Abrams case brought out the latent civil libertarian in him,138 Holmes's behavior after Abrams was hardly that of a person committed to judicial activism on behalf of free speech. The only illibertarian pre-Abrams position that Holmes ever retracted was the hint he dropped in Patterson v. Colorado intimating that the Constitution only forbade prior restraints.139 He insisted both publicly and privately that he "never [saw] any reasons to doubt that the question of law" in Schenck and Debs "was rightly decided."140 During the 1920s this "great" civil libertarian never unambiguously supported a

free-speech claim. Holmes voted to affirm the convictions of political dissenters in Gilbert v. Minnesota and Whitney v. California.141 He seriously considered rejecting the free-speech claims made by Jacob Abrams and Benjamin Gitlow. In letters to Sir Frederick Pollak, Holmes stated that he might have been "wrong in thinking that there was no evidence on the Fourth Count" in Abrams v. United States and that "conscience and judgment are little in doubt" as to the correct decision in Gitlow v. New York.142 Holmes indicated to others that Brandeis had persuaded him to dissent in United States ex. rel Milwaukee Social Democratic Publishing Co. v. Burleson, and he conceded that in Pierce v. United States he might not have been willing to be the only dissenter.143 "The argument for free speech," Holmes elsewhere insisted, "is not easy."144

Holmes's reluctance or unwillingness to offer free speech any substantial or wholehearted protection followed from his fundamental political belief that "the proximate test of good government is that the dominant power has its way," a maxim he reiterated in the crucial passages of both the Lochner and Gitlow dissents.145 Dominant power, he stated, was established by "physical power," not by elections or persuasion. "Truth was the majority vote of that nation that could lick all others."146

Because Holmes considered force the basis of sovereignty, he maintained that the dominant forces of any community had the "right" to remove any obstacle in the way of the present attainment of their goals. Holmes thought that "no society has ever admitted that it could not sacrifice individual welfare to its own existence." "Whenever the interest of society, that is, of the predominant power in the community, is thought to demand it," he declared, "the most fundamental right of the supposed preexisting rights—the right to life—is sacrificed without a scruple."147 In contrast to early civil libertarians, who consistently emphasized that more speech would ameliorate social conflicts, Holmes seemed to regard expression as ultimately worthless. "When men differ in taste as to the kind of world they want," he wrote, "the only thing left to do is to go to work killing."148

The only limit on community power, Holmes apparently concluded, was that the dominant forces of the community could

only prohibit present threats. In Northern Securities Co. v. United States, he declared that "not every act done in furtherance of an unlawful end is an attempt contrary to the law. There must be a certain nearness to the result." Societies, he frequently asserted, could only punish "act[s] . . . done of which the natural and probable effect under the circumstances is the accomplishment of a substantive crime." Thus, the law of criminal attempt, Holmes insisted, emphasized the dangerousness of a person's actions rather the moral value of the actor's motives. Deeds were evaluated "by their tendency under known circumstances and not by the actual intent that accompanies them." Judges should look to a person's state of mind only when that person's actions were "not sufficient in themselves to produce a result which the law seeks to prevent." In such cases, "an intent to bring it to pass" might be sufficient "to produce a dangerous probability that it will happen." Law had no legitimate interest in persons who hoped to impede the achievement of communal goals but lacked the power to do so.149

Holmes specifically declared that his interpretation "of [criminal] attempt in [The] Common Law " was the source of the clear and present danger test.150 This meant that for all practical purposes, prominent spokespersons for left-wing views had no constitutional speech rights. These radical critics threatened the present objectives of the community's dominant forces, even when they did not intentionally advocate criminal conduct or utter falsehoods. Thus, Holmes consistently sustained the convictions of influential political dissidents. Charles Schenck was the secretary of the Socialist party in Philadelphia. Eugene Debs would receive over a million votes when he ran as the Socialist party candidate for president. Joseph Gilbert was a prominent official in the Non-Partisan League, an organization that achieved several major electoral successes in the Midwest, in-eluding a gubernatorial victory in South Dakota. Anita Whitney was a nationally known reformer and president of the California Civic League.

Under Holmes's interpretation of the law of criminal attempt, however, government could not punish speakers incapable of interfering with the dominant forces of contemporary American polities. This theme of impotence dominated the substan-

tive portions of Holmes's famous free-speech dissents·His Abrams opinion declared that "nobody [could] suppose that the surreptitious publishing of a silly leaflet by an unknown man . . . would present any danger . . . or have any appreciable tendency to do so." In Gitlow, Holmes stated that "the redundant discourse before us has no chance of starting a present conflagration." Even if the prosecutor had demonstrated that Gitlow intended to bring about an immediate revolution, he insisted that the utterance before the Court might be "futile and too remote from possible consequences" to support a constitutional conviction.151 Civil libertarians were inspired by Holmes's assertion that, "if in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." But they overlooked that for Holmes it was at least as important that the "belief expressed in proletarian dictatorship" was not likely to have any short-term effect as that it should not be barred from influencing conduct in the unforeseeable future.152

The facts of Gitlow and Gilbert clearly illustrate the crucial role of a speaker's actual influence on Holmes's First Amendment votes· The texts of the relevant speeches suggest that Gilbert clearly presented the stronger libertarian case. Benjamin Gitlow, at the very least, implicitly called for violent revolution. He "repudiate[d] the policy of introducing Socialism by the means of legislative measures" and called for "class action of the proletariat in any form having as its objective the conquest of the power of the state." Joseph Gilbert, by comparison, was arrested for giving a speech that did not even hint at the desirability of illegal conduct; he merely declared that "if this is such a great democracy, for Heaven's sake why should we not vote on conscription of men."153 Moreover, as noted below, Gilbert's lawyers claimed that federal speech restrictions preempted the Minnesota statute under which their client had been convicted. This matter was not raised in Gitlow.

The relative prominence of the defendants was the only difference between the two cases that could explain why Holmes supported only Gitlow's free-speech claim· Gilbert, a leader of the major opposition party in Minnesota, was a person who in-

spired actions. Gitlow was a relatively obscure radical. Holmes described him as "an ass [who] drool[ed] about proletariat dictatorship." Although Holmes observed that Gitlow's speech was not likely to start "a present conflagration," Robert Morlan's standard history of the Non-Partisan League is entitled Political Prairie Fire.154

As this comparison suggests, Holmes not only failed to solve the constitutional dilemma of early civil libertarian thought, but he was also never interested in the problem. One searches his writings in vain for any expression of concern for diversity and participation, the values that inspired other progressive defenders of free speech. Instead, Holmes frequently insisted that virtuous citizens assisted the dominant forces of their community and did not take part in the formation of its goals. He claimed to be a committed proponent of "my country right or wrong." In a speech before his old Civil War regiment, Holmes praised the soldier who would "throw away his life in obedience to a blindly accepted duty, in a cause he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use."155 When asked to contribute to a Harvard Liberal Club meeting that was protesting censorship, Holmes did not deliver a ringing endorsement of the virtues of public debate. He merely noted that "with effervescing opinions, as with not yet forgotten champagnes, the quickest way to let them get fiat is to let them get exposed to air."156

The First Crisis of Civil Libertarianism

While Holmes offered expression rights little constitutional protection, other libertarian jurists did not do much better. Although they denounced the new philosophical attack on free speech, early civil libertarians confessed that the new constitutional attack on those rights was sound. Repeatedly they admitted that if elected officials really wanted to restrict the liberty of discussion, judges committed to the principles of sociological jurisprudence should not prevent them. Indeed, at least one progressive defender of expression rights claimed that Holmes had, if anything, gone too far in favor of free speech.

In an article published in the Michigan Law Review, Herbert Goodrich claimed that Holmes's dissent in Abrams was wrong for the same reason that his dissent in Lochner was right. "The same kind of argument and the same line of thought which upholds a law which restricts a man in the contracts he may make," he asserted, "upholds a law limiting the exercise of his tongue when the majority wills it."157 Goodrich, a law professor at the State University of Iowa, emphasized that his criticism of Holmes did not stem from any enthusiasm for the underlying merits of wartime censorship. He condemned the Espionage Act as "an effective silencer of all but the most polite discussion" and called the Abrams verdict a "great injustice."158 But Goodrich insisted that courts had no constitutional authority to remedy those wrongs. Because "the question of freedom of speech is one of social values," "the advocates of free speech, as the champions of minimum wage laws, have to convince their fellow citizens that their cause is righteous, that the benefits outweigh the dangers." "If unrestricted speech cannot win in [that] field," he con-eluded, "we will probably have to get along without it."159

Ernst Freund's wartime and postwar writings likewise illustrated how adherence to the principles of sociological jurisprudence could significantly inhibit the development of constitutional defenses of free speech. One rallying cry of progressive jurists was Holmes's declaration that "the prophecies of what the courts will do in fact, and nothing more pretentious, [is] what I mean by the law." Freund similarly identified law with the actual decisions of courts. "The Constitution," he declared, "is an excellent weapon in legislative controversies before the courts have spoken." However, it was "a poor one afterwards" because "the conclusiveness of judicial interpretation is part of [our constitutional system]."160 For this reason, Freund could not sustain attacks on illibertarian decisions. If courts consistently rejected free-speech claims, then the Constitution did not provide broad protection for free speech. Thus, Freund almost immediately conceded that the Supreme Court's decisions in Espionage Act cases authoritatively determined the constitutional meaning of free speech. Although free speech was "a problem in constitutional law" in 1914, after the Debs decision, speech had "become a problem in practical legislation."161 By comparison, as noted in

chapter 1, some conservative treatise writers insisted that the Supreme Court had systematically misinterpreted the privileges and immunities clause for more than thirty years.162

Freund also concluded that political as well as judicial reality made it "useless to over-emphasize the substantive limitations of the constitution." Communities inevitably forbade dissent, he confessed, in certain circumstances. Thus, in 1921 Freund suggested that the "cause of free speech gains if a constitution frankly provides for modification or even suspension of the right under the exegesis of war." By explicitly permitting government to limit public debate in wartime, society avoided establishing precedents that might linger after hostilities ended. Even in peacetime, the status of expression rights ultimately depended on public support. "Congress," Freund claimed, could "render the free expression of opinion harmless . . . by denying mail facilities."163

Nevertheless, Freund still found reason to criticize judicial decisions affirming the wartime convictions of political dissidents. Although his famous attacks on Debs v. United States in the New Republic did "not attempt to determine what in the way of restraint is possible under the First Amendment," Freund objected to the way that the justices interpreted the Espionage Act. The fault of Supreme Court opinions rejecting appeals of persons opposed to the war, he claimed, was that "the restraint of speech . . . [was] made to rest on judicial interpretation rather than upon legislation. In his opinion, the federal government in 1917 had recognized the social interest in free expression of criticisms of the war or war policies. Freund insisted that the Espionage Act did no "more than punish attempts to cause military insubordination or willful obstruction of the recruitment service." Therefore, the Supreme Court decision in Debs, which "construed the act as making agitation against the war criminal," was not "sound law." Indeed, this overly broad interpretation of federal sedition legislation amounted to unwarranted judicial policy making. "Had such a measure been deemed legitimate and necessary," Freund insisted, "it should have come from Congress."164

Judge Learned Hand's celebrated opinion in Masses Pub. Co. v. Patten was a similar exercise in statutory interpretation. That decision held that the postmaster general could not forbid the

mailing of a publication that opposed the war effort because the Espionage Act only forbade "direct incitement to violent resistance."165 Hand conceded that elected officials had the constitutional power to shut down antiwar publications. "The peril of war," he wrote, might "justif[y] any measure of compulsion, and measure of suppression, which Congress deems necessary to its safety." However, Hand did not think Masses raised issues that required him to consider the constitutional meaning of free speech. The statute before the Court "presented solely the question of how far Congress after much discussion has up to the present time seen fit to exercise a power which may extend to measures not yet considered." If persons believed that the direct incitement test permitted too much disloyal speech, Hand suggested they convince their elected representatives that present circumstances demanded further restrictions on public debate.166

In his early opinions, Brandeis demonstrated other ways in which judges could reverse the convictions of political dissenters without explicitly limiting the constitutional prerogatives of the national legislature. He admitted that "the power to suppress exists" when Congress "faced with a clear and present danger . . . conclude[d] that suppression of divergent opinion is imperative." However, in Gilbert v. Minnesota, Brandeis argued that the Constitution vested the federal government with "exclusive power over enlistments in the Army and Navy of the United States and the responsibility for the conduct of war." For this reason, only Congress could determine when circumstances justified restricting criticisms of national policies. States, Brandeis insisted, could restrict "free discussion in relation to [these functions] . . . only under the express direction of Congress." No such permission was given to local officials during World War I. Because "it was the established policy of the United States" that "enlistment should be the result of free, informed and deliberate choice," Brandeis contended that states could not constitutionally punish a person who urged others not to volunteer for the armed services. Indeed, Brandeis indicated that the national legislature had preempted all state sedition acts enacted during the war. By passing the Espionage Act, Congress "necessarily exclude[d] all"

state restrictions on expression rights, even those purportedly "in aid of congressional action." "When the United States has exercised its exclusive powers," he declared, "the States can no more supplement its requirements than they can circumvent them."167

Brandeis voted to reverse several federal wartime speech convictions on the ground that the trial judge should not have let the jury decide whether a particular speech was of the sort that Congress had forbidden because there was insufficient evidence that the speaker had violated the Espionage Act. In Schaefer v. United States, Brandeis declared that judges had an obligation "to withdraw the case from the consideration of the jury" if "men, judging in calmness, could not reasonably say that they created a clear and present danger that [a particular utterance] would bring about the evil which Congress sought and had a right to prevent."168 To rule otherwise, he wrote, would result in political dissidents being punished for utterances that elected officials had not intended to prohibit. In Pierce v. United States, he insisted that the trial court should have directed a verdict in favor of defendants who had expressed honest opposition to the war because the provision of the Espionage Act under which they were charged prohibited only willful misrepresentations.169

The libertarian claims made by Freund, Hand, and Brandeis were consistent with several strands of sociological jurisprudence. As noted in chapter 2, progressive jurists encouraged judges to develop legal doctrines that would protect vital social interests in cases not clearly governed by existing legislation. Because the Espionage Act did not declare the advocacy of any specific doctrine unlawful, Hand and Freund did not have to confront an explicit legislative judgment that the social interest in successfully fighting a war outweighed the social interest in permitting verbal opposition to the draft. For this reason, they could maintain that the social interest in free speech was sufficiently weighty to require clear evidence that the legislature had, in fact, intended to restrict "traditional" freedoms of speech. As Hand asserted in Masses, "the power to repress such opinion . . . is so contrary to the use and wont of our people that only the clearest expression of such a power justifies the conclu-

sion that it was so intended.170 Similarly, sociological jurisprudence never insisted that courts defer as readily to the findings of lay jurors as they did to legislative and administrative experts. "The unchecked discretion of juries," Pound declared, "is worse than the . . . rigid mechanical application of law" because verdicts were likely to be "influenced by emotional appeals, prejudices, and the peculiar personal ideas of individual jurors."171 Hence, Brandeis was well within the mainstream of progressive legal thought when he argued that cases should not go to juries if, in the trial judge's expert and unbiased opinion, there was no evidence that the defendant had spoken in a manner prohibited by the people's elected officials.

Unfortunately, these doctrines did not protect political dissidents from postwar state and federal legislation that specifically banned promulgation of certain political doctrines. For example, the New York statute at issue in Gitlow prohibited the advocacy "of overthrowing or overturning organized government by force or violence."172 Furthermore, as was the case with the Smith Act of 1940, the elected branches of government frequently engaged in substantial fact finding before banning the expression of particular beliefs. Thus, even if a court accepted the clear and present danger test, cases like Gitlow v. New York and Dennis v. United States forced libertarian jurists to substitute their opinion for an informed legislative judgment that certain utterances were dangerous. This was precisely the sort of judicial conduct that Pound and other proponents of sociological jurisprudence condemned in cases like Lochner v. New York. When the legislature determined that the advocacy of a specific doctrine presented a clear and present danger to some social interest, progressive jurists insisted that the judiciary defer to the superior fact-finding abilities of the elected branches of government.

This argument eventually proved compelling for virtually every prominent early civil libertarian. Although Learned Hand continued to proclaim the philosophical value of free speech in a democracy, his postwar writings opposed special judicial solicitude for expression rights. Hand confessed that the commands of the First Amendment were "not jural concepts at all," but "no more than admonitions of moderation." In The Bill of Rights he admitted that he "did not think that the interests men-

tioned in the First Amendment are entitled in point of constitutional interpretation to a measure of protection different from other interests."173 Felix Frankfurter, another prominent defender of free speech during World War I, later wrote influential opinions deferring to the federal government's judgment that the communist threat was sufficient to justify prohibiting such speech. His concurring opinion in Dennis claimed that "free speech cases are not an exception to the principle that we are not legislators." "How best to reconcile competing interests is the business of the legislatures," Frankfurter declared, "and the balance they strike is a judgment not to be displaced by ours, but to be respected unless outside the pale of fair judgment."174

Brandeis took a different tack. By 1922, he had decided that if conservatives on the Court were going to abuse the power of judicial review to advance their political agenda, he too was going to abuse that power to advance his own political agenda. Although he privately favored repealing the Fourteenth Amendment as a means of ending judicial protection for laissez-faire property rights, Brandeis told Frankfurter that if the due process clause "must be applied to substantive laws," he was going to apply it to "things that are fundamental." Under the heading of "things that are fundamental," he listed "right to speech, right to education, right to choice of profession, [and] right to locomotion."175 Brandeis was also prepared to limit the circumstances elected officials could use to justify restricting civic debate. As noted above, Brandeis stated he would review legislative judgments that a particular class of utterances presented a clear and present danger with the same scrutiny which conservative justices applied in freedom of contract cases. If he did not find enough evidence to justify restricting speech in the public interest, Brandeis would declare that a conviction violated First and Fourteenth Amendment expression rights.176

Moreover, Brandeis sharpened Holmes's clear and present danger test by requiring that the threatened harm be substantial. In order to meet First Amendment standards, he declared, "it must be shown either that immediate serious violence was to be expected or was advocated, or that past conduct furnished reasons to believe that such advocacy was then contemplat-

ed."177 This "immediate serious violence" standard was both more and less protective than that criminal advocacy test advanced by conservative libertarians. Brandeis thought that the Constitution permitted states to punish speakers who did not advocate lawless conduct or cause an actual material injury, as long as their utterances threatened vital social interests. Government, he asserted, could restrict speech that "would produce, or is intended to produce a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent" (emphasis added).178 However, unlike previous libertarians, Brandeis sharply distinguished incitement and advocacy of illegal conduct. He thought incitement could always be punished, but "advocacy of law-breaking" that "falls short of incitement" could be punished only if the evidence demonstrated that "the advocacy would be clearly acted upon" and threatened severe injuries. Thus, persons could abstractly call for violating certain minor laws as long as they did not insist on immediate criminal conduct. In Whitney, Brandeis insisted that no person could be punished who only advocated that "pedestrians had the moral right to cross unenclosed, unposted wastelands . . ., even if there was an imminent danger that advocacy would lead to trespass." "The fact that speech is likely to result in some violence or in destruction of property," he declared, "is not enough to justify its suppression. There must be the probability of serious injury to the State."179

The most intriguing aspect of Brandeis's constitutional defense of expression rights was his assertion that the Constitution protected the entire social and economic program that early civil libertarians thought necessary to ensure a functional system of free speech. In 1914, before he joined the bench, Brandeis suggested that the due process clauses of the Fifth and Fourteenth Amendments obligated elected officials to pass the favorite measures of progressive reformers. "The 'right to life' guaranteed by our Constitution," he declared,

is now being interpreted according to the demands of social justice and of democracy as the right to live and not merely to exist. In order to live men must have the opportunity of developing their faculties; and they must live under conditions in which their faculties may develop naturally and healthily.

In the first place, there must be abolition of child labor, shorter hours of labor, and regular days of rest, so that men and women may conserve health, may fit themselves to be citizens of a free country, and may perform their duties as citizens. In other words, men and women must have leisure, which the Athenians called "freedom" or liberty. In the second place, the earnings of men and women must be greater, so that they may live under conditions conducive to health and to mental and moral development.180

Eight years later, Brandeis repeated his claim that the basic institutions of positive liberty were aspects of the general principle of liberty protected by the Fourteenth Amendment. He explicitly added that judges could enforce those constitutional guarantees. The "right to education and the right to choice of profession" were among the fundamental rights that Brandeis claimed he was going to use the Fourteenth Amendment to protect.181 Although Brandeis never wrote a judicial opinion detailing the full scope of those rights, he voted to strike down state laws that forbade the teaching of German, required all children to attend public schools, and unduly regulated private schools because they interfered with the freedom of education protected by the Fourteenth Amendment; Brandeis also cited those cases in Whitney supporting his interpretation of the due process clause.182

Brandeis's willingness to rely on the conservative libertarian constitutional defense of free speech became the norm on the Taft and early Hughes courts. From 1927 to 1937, progressive and liberal supporters of expression rights unanimously voted to strike down state restrictions on expression rights without offering any novel justification for such judicial activism. As one of Justice Stone's clerks observed, libertarians on the bench were content to claim "that liberties enshrined in the Bill of Rights deserved as much protection as did 'liberty of contract' and that sauce for the goose should be sauce for the gander."183 In Near v. Minnesota, for example, Chief Justice Hughes merely declared that "it was found impossible to conclude that this essential liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property."184

Nevertheless, this practice was marked by another dilemma. If the Whitney concurrence and the Lochner majority stood and

fell together, then civil libertarians could constitutionally protect speech only if they conceded that legislatures had no constitutional power to establish what they believed were the economic and social prerequisites of a functional system of freedom of expression. If early civil libertarians ever staged a judicial revolution that freed legislative activity on behalf of the necessary conditions of effective expression, that rebellion would also destroy the only extant basis for judicial activism on behalf of free speech.