Chapter Four
Zechariah Chafee's Achievements

Zechariah Chafee, Jr., is the seminal figure in the development of the modern constitutional defense of free speech.1 His friend Felix Frankfurter declared that Chafee's influence on "that pervasive area of national life known as civil rights has no match in the legal professorate." Chafee's Freedom of Speech (1920), which he updated in 1941 as Free Speech in the United States, has been described as the "Bible on civil liberties questions," "a landmark in the literature on the subject," and the "piece of writing" that did the most "to define the nature of personal liberty." "Two generations of free-speech advocates," Jonathan Prude observed, "looked to the work as the starting point for all their discussions and debates." Indeed, contemporary libertarian theory and history is still largely a series of responses to the problems Chafee addressed and the solutions he offered. Chafee's writings, his biographer recently concluded, have "set the agenda for the continuing dialogue on the meaning of 'Congress shall make no law abridging the freedom of speech or of the press.'"2

From the passage of the Espionage Act in 1917 until his death in 1957, Chafee, a professor at Harvard Law School, repeatedly contended that government could only constitutionally punish those rare instances of speech that threatened immediate harm. Justice Holmes, he claimed, correctly interpreted the Constitution in Schenck v. United States when he declared that the First Amendment protected debate over matters of public impor-

tance unless there was "a clear and present danger" that advocacy would "bring about the substantive evils that Congress has a right to prevent." Chafee maintained that Holmes's standard drew "the boundary line very close to the test of incitement at common law and clearly ma[de] the punishment of words for their remote bad tendency impossible."3 Judicial adoption of the clear and present danger test would prevent critics of American policies from being imprisoned merely because they challenged cherished political values.

Chafee frequently insisted that his free-speech writings pro-rooted traditional understandings of expression rights. A libertarian renaissance was necessary, he argued, only because Americans had forgotten the underlying principles of an inherited libertarian theory and their accepted standards of judicial protection had become outdated. In particular, Chafee claimed that the legal safeguards favored by eighteenth- and nine-teenth-century libertarians proved inadequate in the face of novel repressive practices during World War I and the red scare. Hence, Freedom of Speech and other writings outlined two tasks for twentieth-century proponents of free speech. First, they had to remind Americans of the historical principles that provided the foundations for free-speech rights. Second, they needed to devise a new legal standard—the clear and present danger test—enabling courts to secure the advocacy rights that critics of domestic and foreign policy had previously enjoyed. By publicizing and updating what he claimed was a traditional libertarian doctrine, Chafee purportedly sought to ensure that the system of freedom of expression would continue to function in the face of contemporary threats to advocacy rights.

The testimonials in the first paragraph of this chapter demonstrate that Chafee successfully promoted a constitutional defense of free speech. But his alleged attempt to expand traditional libertarian standards of judicial protection was both an unnecessary measure and a failure. In 1917 the interpretations of the First Amendment that previous libertarians had offered did not need expanding. As noted in chapter l, judicial adoption of conservative libertarian understandings of constitutional expression rights would have protected virtually every political

dissident convicted during and immediately after World War I. Indeed, Chafee's version of the clear and present danger test actually offered less protection to twentieth-century political dissenters than the standards proposed by earlier speech advocates. Whereas Cooley and other late nineteenth-century treatise writers had declared that the Constitution affirmatively protected all speakers who did not advocate crimes or intentionally utter falsehoods, Chafee assumed that Congress could forbid any advocacy that significantly threatened any of numerous public interests. In sharp contrast to the conservative libertarian jurist John W. Burgess, who declared that wartime federal legislation restricting expression rights was incapable of any constitutional application, Chafee thought that the Espionage Act was a constitutional exercise of national power, and constitutionally applied in Schenck v. United States to speakers who attacked the constitutionality of the draft.4

The relative inadequacies of the clear and present danger test as a libertarian standard suggest that Chafee had motives other than his expressed desire to develop constitutional doctrines that would provide more protection to unpopular speakers. In fact, Chafee was as concerned with the premises of the constitutional defense of free speech as he was with its conclusions. He rejected the principles underlying the "traditional" conservative libertarian defense of expression rights because, although he sometimes pretended otherwise, he was a mainstream progressive who insisted that judges had no business protecting their idiosyncratic notions of individual rights. Like other civil libertarians, whose vision of a diverse and participatory society he shared, Chafee believed that majorities in democratic societies should be able to govern themselves as they saw fit. Thus, he was not willing to let an unelected judiciary determine the fundamental values of his community, even when doing so might successfully defend the expression rights he cherished.

Chafee's primary achievement, chapter 4 argues, was his construction of the first defense of judicial activism on behalf of expression rights that was consistent with the basic principles of early civil libertarianism. Chafee's writings successfully transformed the bases of the constitutional defense of free speech from the political and legal principles of conservative libertar-

ianism to pragmatism and sociological jurisprudence. In his writings, free speech was no longer an individual right like the liberty of contract; now it was a procedural prerequisite of any democratic society. The guarantee of free speech, in other words, enabled people to choose democratically whether they also wished to enforce a guarantee of free contract. Once public discourse was conceptualized in this way, judges in democratic societies could consider themselves as obligated to protect expression as they were obligated to defer to the policy decisions made by elected officials.

Chafee's new constitutional tradition differed from conservative libertarianism in several important ways. First, following Pound and Schofield, Chafee insisted that the Constitution primarily protected the social interest in free speech, rather than the individual's interest in self-expression. Second, Chafee endorsed the claim of sociological jurisprudence that constitutional standards should be responsive to changing social conditions, not simply reflective of their framers' intentions. However, in contrast to such progressive opponents of speech rights as Edward Corwin, Chafee pointed out that this canon of interpretation sometimes required broader rather than narrower readings of constitutional guarantees. In his opinion, the same circumstances of twentieth-century life that justified limiting the economic rights stated in the Constitution necessitated expanding constitutional expression rights.

Third, Chafee inspired and then defended Justice Stone's claim that judicial activism on behalf of free speech was based on a judicial obligation to police the democratic process, rather than a judicial duty to protect fundamental rights from majoritarian tyranny. Legislatures, both contended, could make intelligent substantive policies and respond to the wishes of democratic majorities only if full and unrestricted debate on matters of public interest was assured. Thus, properly understood, sociological jurisprudence entailed judicial solicitude toward speech rights but judicial deference to the economic and social policy choices of elected officials.

Finally, as a consequence of this sharp distinction between expression and economic liberties, Chafee became the first American libertarian to renounce judicial protection of the economic rights that he believed were necessary to exercise speech

rights effectively. Like other early civil libertarians, Chafee believed that democratic societies regulated economic life to ensure that all citizens could take part in public decision making. Indeed, he insisted that the First Amendment required legislatures to take into account the effect that various economic and social programs had on the system of free expression. This requirement, however, was not to be enforced by the judiciary. Decisions allocating material resources were substantive policies and, hence, matters to be decided by elected officials, even when the distribution of those resources obstructed the fair functioning of the democratic process. Thus, although advertised as an attempt to make free-speech standards more responsive to twentieth-century conditions, the new constitutional defense of free speech would be structurally insensitive to the economic inequalities that most civil libertarians now consider the main threats to a functional system of freedom of expression.

In promoting this new constitutional defense of free speech, Chafee gave civil libertarianism a new historical status. Previous progressive defenders of expression rights had correctly understood themselves as breaking with an earlier individualistic conception of free speech. As noted in chapter 3, John Dewey and others urged libertarians to abandon inherited understandings of expression rights.5 Chafee, however, claimed merely to be popularizing traditional arguments. His historical discussions of libertarian theory maintained that the constitutional defense of expression had always been based on certain universal political and legal principles. These principles were, in fact, peculiar to pragmatism and sociological jurisprudence. Through this distortion of the libertarian past, Chafee could ground his clear and present danger test in historical precedent while avoiding comparisons with the more speech-protective, conservative libertarian tradition. In short, in transforming the constitutional defense of free speech, Chafee invented the civil libertarian tradition.

The Tactics of Transformation

Chafee openly admitted his willingness to sacrifice disinterested scholarship when promoting free speech. He avoided

making legal claims that were "bound to be useless in the practical task of opposing current suppressive measures." "I have tried," he stated, "to argue about things to which I have some chance of winning."6 However, Chafee did not regard the popularizing of speech-protective interpretations of the First Amendment as the sole aim of libertarian doctrine. He was as interested in promoting a particular approach to expression rights as he was in developing standards judges might use to safeguard political and social commentary. Thus, although he sometimes manipulated historical facts to buttress his conception of constitutional speech rights, Chafee suppressed or distorted evidence that strengthened the conservative libertarian interpretation of the liberty of discussion, even when that evidence supported expansive readings of First Amendment rights. By so perverting the history of libertarian theory, Chafee presented as the traditional constitutional defense of expression rights an original argument based entirely on the philosophical and jurisprudential principles of early civil libertarian thought.

Many of Chafee's tactics resembled those of ordinary legal advocates defending a client's advocacy rights. Lawyers normally tailor their arguments to suit the particular court before which they appear. Chafee similarly confessed that he occasionally concealed his personal preferences and promoted the libertarian standards he thought judges were more likely to adopt. "The clear and present danger test," he admitted, was "not the best possible formulation of the line between constitutionally protected speech and speech which is punishable," but only "the best which has yet been authoritatively laid down." Chafee privately favored the expression "direct incitement to violent resistance," which Learned Hand coined in Masses, or the phrase he used in 1918 that "speech should be free, unless it is clearly liable to cause direct and dangerous interference with [other social interests]."7 Indeed, the two articles he published in 1919 declared that "direct provocation" was the correct standard of First Amendment protection.8 Chafee only asserted that the clear and present danger test "mark[ed] the true limit of governmental interference with speech and writing under our constitution" after the Supreme Court's decision in

Abrams, when Holmes and Brandeis first used that standard to protect specific political utterances.9

Chafee's historical writings were no more objective than the discussion of precedent in most legal briefs. Important passages in Freedom of Speech exaggerated the historical foundations of Chafee's interpretation of constitutional free-speech guarantees. As many scholars have demonstrated, Chafee clearly invented history when he declared that Holmes used the phrase "clear and present danger" in Schenck to make "the punishment of words for their bad tendency impossible."10 In fact, Chafee's 1919 Harvard Law Review article, "Freedom of Speech in War Times," marked the first time that "clear and present danger" was used as a speech-protective standard. When Holmes and Brandeis later decided to support the claims of political dissenters, they proceeded to accept "as their own the libertarian meaning Chafee erroneously read into their words."11

Chafee similarly minimized the import of precedents that narrowly interpreted the constitutional meaning of free speech. His works ignored the generally illibertarian nature of many pre-World War I free-speech decisions. Although recent scholarship has demonstrated that free-speech claims were frequently litigated and usually denied in the fifty years before World War I, Chafee claimed that such cases were "too few [and] too varied in their character . . . to develop any definite boundary between lawful and unlawful speech."12 Chafee may have correctly asserted that the authors of the Bill of Rights "in tended to wipe out the common law of sedition." However, he never discussed the evidence that others use to prove that the framers intended only to abolish prior restraints.13

Obscuring Conservative Libertarianism

While Chafee presented what was, at best, a wildly optimistic reading of the historical evidence favoring his conception of the constitutional meaning of free speech, his interpretation of the historical pedigree of conservative libertarian arguments was remarkably pessimistic. In works that purported to give a complete history of free-speech law and theory, Chafee never discussed the speech-protective doctrines offered by late nine-

teenth-century legal treatise writers. "During the whole of the nineteenth century," he falsely asserted, "the philosophical and political principles which underlay the constitutional guarantees [of free speech were] forgotten for lack of constant assertion and examination of them." Similarly, he ignored such libertarian utterances as Cooley's majority opinion in Atkinson v. Detroit Free Press and Harlan's dissent in Patterson v. Colorado. Without referring to any case by name, Chafee merely commented that earlier judicial opinions broadly interpreting constitutional expression rights were "precedents of very dubious value" because they "seem to ignore so seriously the economic and political facts of our time."14

Indeed, Chafee maintained that late nineteenth-century treatise writers and their philosophical allies opposed broad interpretations of First Amendment guarantees. As noted in chapter 1, Chafee declared that the historical opponents of broad free-speech rights had always been those conservatives who were willing to use the power of judicial review to strike down progressive and New Deal economic reforms.15 Scholars reading Chafee's works were told that they would not find an alternative to civil libertarianism in the nineteenth century, particularly in the writings of late nineteenth-century conservative thinkers.

Not only did Chafee obscure the existence of conservative libertarians, but he also ignored the role they had played in developing the foundations for incorporating free speech into the Fourteenth Amendment. As noted in chapter 1, virtually every prominent conservative libertarian jurist insisted that free speech was a Fourteenth Amendment right. Furthermore, in the first twenty years of the twentieth century, the Supreme Court consistently adjudicated the merits of claims that state governments had violated free-speech rights. Chafee, however, did not present any of this evidence. Free Speech in the United States gave the impression, now shared by most contemporary scholars, that in Gitlow the Court's holding that states had to respect constitutional free-speech rights was a surprising reversal of doctrine, not merely an announcement of a previously established policy. Before 1920, Chafee declared,"no thoughtful lawyer would have dared make a firm assertion that the United States Constitution protects liberty of discussion against the states."16

Chafee similarly misrepresented the historical relationships between the freedom of contract and the freedom of speech. He maintained that defense counsel in Gitlow relied exclusively on Meyer v. Nebraska and Pierce v. Society of Sisters in support of their claim that the due process clause protected free speech;17 these cases, respectively, held that the Fourteenth Amendment protected the right to teach a foreign language and the right of parents to send their children to private school.18 In fact, the defense brief submitted in Gitlow made no mention of those authorities.19 Instead, Gitlow's attorneys argued that a Fourteenth Amendment right of free speech was inherent in the holdings of Allgeyer v. Louisiana and Coppage v. Kansas, two cases decided on freedom of contract grounds.20 Chafee never informed his readers that the Gitlow opinion indicated that these latter cases provided the precedential support for its holding, and he ignored other cases that explicitly connected constitutional free-speech and private-property rights.21

Underlying Chafee's slight of the historical evidence supporting the conservative libertarian assertion that free speech was a due process right was Chafee's hostility to the substance of that claim. One looks in vain through his writings for any historical, theoretical, or functional defense of the individual's Fourteenth Amendment right of self-expression. Although he explored the original purpose of the First Amendment at length, Chafee never discussed whether the framers of the post-Civil War amendments intended to protect expression rights against hostile state action. Similarly, his discussions of the constitutional meaning of free speech focused almost exclusively on the proper interpretation of the First Amendment. Chafee did claim that in Gilbert v. Minnesota "Justice Brandeis gives very interesting reasons for his position that freedom to discuss national affairs is one of the 'privileges and immunities' of citizens of the United States, which no state can abridge,"22 but he refused to elaborate or endorse Brandeis's arguments.23 In private correspondence, Chafee attacked those intellectuals whose "love for the privileges and immunities clause" inspired their constitutional defenses of free speech.24

Chafee's public discussions of the Fourteenth Amendment further revealed his distaste for the conservative libertarian

tradition's use of the due process clause to protect expression rights. His analysis of Gitlow v. New York encouraged readers to peruse Charles Warren's article, "The New 'Liberty' under the Fourteenth Amendment," for an "able discussion of the background and implications of th[e] holding" that free speech was a Fourteenth Amendment right.25 As noted in chapter 3, the Warren article attacked this decision on the ground that no principled distinction existed between economic substantive due process and due process protection of free speech.26 Long after the Supreme Court had established otherwise, Chafee continued to suggest that "freedom of speech is too precious to be left altogether to the vague words of the due process clause."27

Although Chafee denied that conservative libertarians were interested in expression rights, he insisted that a second group of American conservatives played vital roles in the struggle for free speech. His "conservative libertarians" were persons who favored laissez-faire economic policies but recognized that the elected branches of government had significant constitutional power to regulate commercial life and, as such, did not call on judges to protect the freedom of contract.28 Chafee insisted, however, that these conservatives offered no distinctive defense of free speech. Rather, in his account, these "conservative libertarians" and progressive thinkers agreed on a common constitutional defense of expression rights. To further this impression, Chafee successfully pretended that he was a conservative without interest in the reform movements of his day. Thus, those following in his footsteps assumed that Chafee presented the traditional interpretation of American advocacy rights. As Donald Smith recently stated, "his great defense of free speech was, in a significant sense, a reflection of his conservatism."29

The Illusion of Nonpartisanship

Jerold Auerbach observed that Chafee "labored strenuously to make his argument palatable to those who too eagerly assumed that civil libertarianism and radicalism were indistinguishable."30 As part of this effort to distinguish his defense of the right to express radical opinions from a defense of the soundness of radical beliefs, Chafee constantly claimed that libertar-

ian arguments transcended partisan political debate. The defense of free speech, he argued, was consistent with the justifications for any social or economic policy. Thus, proponents and opponents of the liberty of contract could agree on the value of uninhibited debate on the merits of that dispute. The "principle" underlying advocacy rights, Chafee declared, "may be invoked just as eagerly . . . by conservatives" as by left-wing critics of governmental policies. Chafee further insisted that the philosophical foundations of the system of freedom of expression were timeless, transcending the particular intellectual fashions of any era. In his view, libertarians had historically shared a common understanding of the foundation of expression rights. All proponents of free speech from Milton to Mill to Holmes, he contended, valued public debate for the same reasons. Disputes among libertarians were historically confined to questions over the best means of protecting free speech from particular repressive policies. Thus, developments in libertarian theory reflected only differences in the "machinery considered essential at the time to achieve this continuing purpose, whose great and permanent significance is triumphantly proclaimed in the opening clauses of our federal Bill of Rights."31

Chafee maintained that the leading proponents of expression rights had recognized that their arguments for expression rights were independent of those supporting partisan politics. The most important contributors to libertarian theory, he insisted, were persons who successfully divorced their attitudes toward economic and social policies from their attitudes toward free speech. Free Speech in the United States was a celebration of Justice Holmes,32 whom Chafee observed was "much out of patience with the radicalism which judicial opinions placed under the protection of the Constitution," yet "reluctant to stop other men from trying to make things better" because he was "not sure enough of [his] own ideas to be certain that the reformers are wrong."33 If anyone played the second lead in Chafee's modern history of free speech, that person was Charles Evans Hughes, whom Chafee claimed shared Holmes's attitudes toward economic and social reform. "Under [Hughes's] leadership," he wrote, the "inspiring proclamations of this great

American tradition of freedom of speech . . . became part of the majority of the Court."34

By comparison, Chafee was not nearly as effusive in his praise of Justice Brandeis, whom he saw as one of those partisan reformers "who are very much dissatisfied with existing conditions and anxious to change them."35 Chafee never asserted that Brandeis made any significant contribution to First Amendment theory. Although most scholars consider the Whitney concurrence one of the most important free-speech opinions ever written by a Supreme Court justice because it added a requirement of seriousness to the clear and present danger test, Chafee implied that Brandeis was merely repeating Holmes's views. When, at the end of his life, Chafee reviewed the development of the constitutional defense of expression, he did not even mention Brandeis's name.36

Chafee emphasized that he "adhere[d] to traditional political and economic views" of the sort espoused by Justices Holmes and Hughes.37 In the opening paragraphs of both Free Speech in the United States and Freedom of Speech, Chafee asserted, "I have no sympathy myself with the views of most of the men who have been imprisoned since the war for speaking out."38 "The idea that government should support the people," he declared elsewhere, "is off my beat."39 Chafee stated that he opposed "the ideal of social equality" that would "entrench without limit upon savings and business enterprise," was indifferent to the demands of labor unions, and regarded much of the New Deal as "too hastily" implemented. He expressed empathy with "the irritation which . . . businesses feel under the governmental state" and worried about "the coming epoch where education and everything else will be operated solely by a bureaucratic state." "Socialists," Chafee thought, "assume that human beings who dislike being ordered around by people who are better born or richer than themselves are going to relish being ordered about by people who are cleverer than they are."40

Although his efforts on behalf of free speech were devoted to defending persons who attacked the institutions of private property, Chafee claimed that he was "sufficiently convinced of the value of property to spend most of [his] time studying

how the law can adequately protect it." Indeed, he asserted that his work on insurance problems was his most valuable contribution to public law.41 Chafee reiterated this devotion to traditional economic policies during his famous trial at the Harvard Club. In response to conservative alumni of the Harvard Law School, who demanded that he be fired because of the political implications of his article attacking the verdict in Abrams v. United States,42 Chafee emphasized that he had "no sympathy with the political and economic doctrines of these prisoners." "My sympathies and all my associations," he informed his accusers, "are with the men who save, who manage and produce. But I want my side to fight fair."43

As the testimony of many acquaintances attests, these professions of conservatism were partially true. Chafee did reject radical social visions. Like many other progressive thinkers, he opposed some aspects of the New Deal and hoped to restore an older community rather than create a new one. He certainly would have joined neither the Students for a Democratic Society nor the Critical Legal Studies Conference. Nevertheless, while he may have been a conservative in these senses,44 Chafee was also a mainstream progressive thinker. He rejected both the policies advanced by conservative libertarians and the reasons they gave for advancing those policies. Instead, he was a firm proponent of pragmatism and sociological jurisprudence. Furthermore, he identified with the views of early civil libertarian thinkers and, in particular, endorsed the Dewey/Addams/Brandeis vision of the democratic society.

Chafee frequently declared that Spencer's formula of freedom and Mill's harm principle were outdated because "very few acts are wholly self-regarding." "The old-fashioned liberties," he argued, "are as precious as ever, but they are no longer enough. A man left alone cannot save himself. He would merely be out of a job, starve because meat and grain are not transported, freeze because coal and oil do not arrive in his city." Like other progressive thinkers, Chafee maintained that changing social conditions justified more governmental intervention than had been necessary in the past. "Our people," he maintained, "have put too much trust in the automatic tendencies of our society to right itself." In his view "the duties of government have

ceased to be merely negative—to protect citizens from enemies foreign and domestic, including tyrannical officials." Social obligations were "also affirmative—to help keep running the thermodynamic machine of each human being and the equally complex interadjustments of a great aggregate of human beings."45

Most regulations of commercial activity enacted in the early twentieth century had Chafee's firm support. When Chafee questioned New Deal policies, he did so by contrasting them with welfare legislation passed in the progressive era.46 Although opposed to their specific demands, he believed that radicals frequently pointed to areas where more moderate changes were necessary.47 In "Prosperity," written just three months before the stock market crash of October 1929, Chafee challenged Americans to "employ" their largess "in planning and making secure a better world."48 That article endorsed federal programs designed to alleviate unemployment and protect the environment.49

Chafee sided with such early civil libertarians as Dewey, Addams, and Brandeis when their values diverged from progressive opponents of free speech. He thought that the end of government was "to make men free to develop their faculties," that "the right of every individual to develop his mind and his soul in the ways of his own choice" was the meaning of "self-govern-ment and freedom" "The development of mind and spirit, and the search for truth," he insisted, are "the best things men stand for."50 This human development would best be fostered in a diverse, participatory society. Chafee valued "the ideal of Roger Williams," who believed that the United States should be a land of small heterogenous communities, rather than one large homogenous community.51 "If Americanization means anything concrete," he argued, "it certainly means tolerance for opinions different from our own, however objectionable they seem to us." "Diversity in the effective communication of facts and opinions" was "a fundamental presupposition of the self-righting process."52 Echoing Brandeis, Chafee spoke of "the curse of bigness—big corporations, big unions, big government agencies." Large organizations, he claimed, encouraged a sluggishness inconsistent with a free citizenry. "Whenever I see a

big enterprise," he declared, "I want to knock it into smaller pieces because the centralization of power seems dangerous and dull."53 To combat bigness, Chafee urged that the majority of governmental functions be handled by local agencies so that "the public would have a fairly direct share in the functions of government that intimately affect their own life." By structuring the community in this way, society could best ensure the "abundance of inquiring minds among the people" that was necessary to maintain a democratic society.54

Chafee endorsed civil libertarian positions on industrial democracy and educational reform. His father approved of his decision to teach law because he could not tolerate his son's belief that senior employees in the family business should have a say in company policy and a share in company profits.55 Like Dewey, Chafee argued that the function of a school "is to supply [students] not so much knowledge as power, power to understand the universe and the social order in which they exist now and the different social order of a quarter century hence when they will be in the lead. They must not regard the principles of today as eternal truths."56

Most important, Chafee shared the vision of a democratic society that inspired the new philosophical defense of free speech. Persons in the good society, he claimed, developed their powers and advanced the common good by actively participating in public debates over vital social questions. Chafee insisted,

A community is a universe of discourse in which the members participate by speaking and listening, writing and reading. In a free community the members establish and re-establish, examine and re-examine, in response to one another, their formulations of man's ultimate ends, the standards of their behavior, and their application to concrete issues. Thus, the society in a continuous enterprise of inquiry and discussion gropes its way through changing tasks and conditions; the individual, even if not free from the pressures of his own circumstances, can feel "free" by participating in that enterprise.57

In this democratic society, "speech" had to "be fruitful as well as free." "Experience," Chafee declared, "introduces this qualification into the classical arguments of Milton and John Stuart Mill, that only through open discussion is truth discov-

ered and spread."58 Chafee endorsed civil libertarian demands for governmental economic regulations that would provide all persons with the resources necessary for meaningful input into the marketplace of ideas. He condemned "unmanaged processes, whether in economics or in communication."59 Legislation, Chafee insisted, had to ensure "the widespread distribution of the material things which make for a happy and fruitful life" and could not be "content with adjusting the negative forces which restrain liberty."60 In his "Liberty and Law" essay, Chafee argued that elected officials had to "consider the development of positive forces which will encourage [liberty] and remove the sluggishness of thought into which we all easily lapse even without any prohibitions upon opinion." "We cannot afford," he concluded, "to neglect methods for obtaining livelier oral discussion and places available for it, and for encouraging fuller presentation of all sides of international and industrial controversies in the press and over the radio."61

Finally, like other early civil libertarians, Chafee recognized that threats to the meaningful exercise of free-speech rights were "just as great where the interference comes from corporations as when it comes from government." The most significant obstacle to an effective system of free expression, he insisted, is "the increased tendency for the most effective instrumentalities of communication to be bounded and shaped by persons who are often on one side of many public questions."62 Although Chafee did not believe that government should aggressively police the communications industry,63 he called for government to provide free public facilities for speakers, improve the quality of education, and require commercial news organizations to sell their services to all those willing to pay the price.64

Chafee's attitude toward law was as partisan as his attitude toward politics. Like other progressives, he rejected conservative approaches to legal interpretation in favor of the more pragmatic method of sociological jurisprudence. Indeed, Chafee was at the center of early twentieth-century movements for legal reform. He first became interested in the philosophy of law when he attended one of Roscoe Pound's courses at Harvard Law School, an experience Chafee later described as "one

of the decisive influences on my life because it excited me about the possibilities of doing something to make the law better."65 He accepted Pound's offer of a teaching position at Harvard Law School because he wanted to "share in the modernizing of American law."66 When asked what books his law students should read, Chafee nominated William James's Pragmatism because that book was "an exposition of the philosophy which is most influential upon the thinking of our time."67

Chafee's writings on other legal subjects promoted the basic principles of sociological jurisprudence. Like Pound, Chafee believed that judges should resolve cases by examining actual social conditions, not by relying on a theory of natural rights. "It is the judge's duty," he claimed, "to test a proposed rule by its effect upon the welfare of those whom it concerns."68 Natural rights were merely "lovely label[s] to be attached to the ideas a particular person would like to have prevail."69 Chafee similarly asserted that contemporary legal problems could not be solved by deductive processes or mechanical interpretations of past decisions. "Logic," he insisted, does not lead inevitably to a single sound rule of law for every conceivable legal problem."70 Judges should rely on precedents only when they help advance contemporary social interests. "The teaching of the past," he opined, "is of little use unless it emphasizes its similarity to the present." Jurists had to have "the training and ability to distinguish rules workable today from the unworkable." In this way, "the principles of the past" could be "used and gradually extended to solve the complex problems of the judge's own time."71

Constitutional interpretation was also a process of making legal principles serve social interests. Judges, Chafee claimed, could not and should not rely on the intentions of the constitutional framers. In many cases, efforts to discover "the pre-existing will of the people only revealed that "the people probably never thought about the matter one way or the other when they voted for the constitution."72 Even if the framers' intentions could be determined, those intentions were not dispositive of constitutional questions. An evolving society might require new interpretations of constitutional provisions. Chafee defended the Supreme Court's eventual ratification of the New Deal on

the ground that "wider powers" of economic regulation were "appropriate to the new needs although inappropriate to the old needs."73

In keeping with sociological jurisprudence, Chafee declared that the judiciary had no business determining what economic regulations were necessary under contemporary social conditions. Making such choices was the function of the elected branches of government. "The vote of the majority of the electorate or the legislature," he asserted, "is the best way to decide what beliefs shall be translated into immediate action."74 Legislatures were not only more accountable to the will of the people than the courts, but also, as Pound had argued, the elected branches of government had greater institutional resources for determining and responding to public interests and needs.75 For this reason, Chafee believed that the constitution should be interpreted as permitting government to experiment with diverse social programs. That document, he wrote, is "compatible with other types of economic organization, such as national ownership of all industries."76 Court opinions that used the due process clause of the Fourteenth Amendment to limit the regulatory power of the elective branches of government were as much an abuse of judicial power as was the Dred Scot decision.77

Before Chafee, progressive jurists had assumed that these principles of judicial restraint should also govern freedom of speech cases.78 Even Brandeis admitted that judicial protection of political dissenters was inconsistent with the judicial obligation to defer to the legislature's assessment of the appropriate balance of social interests. In spite of such claims, Chafee refused to abandon the principles of sociological jurisprudence when constructing his constitutional defense of expression rights. Instead, he asserted that, properly understood, Pound's legal philosophy required a broader interpretation of the constitutional meaning of free speech than early civil libertarian jurists had thought possible.

Nevertheless, this decision to rely on the premises developed by earlier progressive jurists limited the extent to which Chafee could translate the democratic aspirations of early civil libertarian thought into constitutional law. Although he sincerely hoped that the dominant voices in his community would de-

mand the social and economic conditions that would enable all persons to exercise their expression rights effectively, Chafee insisted that the majority had the right to choose any social or economic policies they pleased. The principles of sociological jurisprudence, he confessed, would not tolerate judicial activism on behalf of economic rights, even though he recognized those rights as an integral part of a functioning system of free expression.

The New Constitutional Meaning of Free Speech

In 1919, Chafee published the first constitutional defense of free speech that thoroughly broke with the conservative libertarian tradition. Although major chunks of "Freedom of Speech in War Time" and his subsequent writings extended and elaborated, without much originality, claims made earlier by Pound and Schofieid, Chafee expanded their understanding of constitutional advocacy rights in important ways. Unlike Pound, Chafee discussed at length the social interest in debate about matters of public importance. Unlike Schofield, he derived his standards of protection from the needs of a twentieth-century system of freedom of expression, not from the particular intentions of long dead framers of the Constitution. More important, Chafee was the first thinker to suggest that changing social conditions might require broadening constitutional protections. If the standards preferred by the authors of the First Amendment no longer served the function that speech served in democratic societies, then the Constitution commanded judges to devise standards that would.

Chafee's analysis of the constitutional meaning of free speech began in the traditional manner, with a discussion of the original purpose of the First Amendment. The framers, he stated, sought to guarantee "a wide and genuine protection for all sorts of discussion of public matters." They thought they could do so by outlawing the crime of seditious libel, which permitted persons to be punished for true utterances, and by allowing ju-

ries to determine the issue of truth.79 Chafee admitted that the original rationale of constitutional free-speech guarantees governed their subsequent interpretation. However, future generations were bound only by the principles underlying constitutional provisions, not by the particular means the framers believed necessary or sufficient to realize those values in practice. "The meaning of First Amendment," Chafee declared, "did not crystallize in 1791." Constitutional protections had to continue fostering the unrestricted interchange of ideas that the framers had envisioned. Eighteenth-century standards, re-fleeting the political conditions of their day, were subject to revision in light of changing circumstances. Although "conditions in 1791 must be considered," Chafee would not have them "arbitrarily fix the division between lawful and unlawful speech for all time."80

This emphasis on changing social conditions was one standard convention of early twentieth-century political and legal argument. As noted in chapter 2, progressive jurists consistently pointed to new industrial developments when justifying a narrower scope of constitutional protection for economic rights. Pound similarly argued that novel features of contemporary life might justify modifying both the individual's right to self-expression and the traditional rule against prior restraint.81 Chafee, however, devised a novel use of this mode of argument. He proposed that sociological jurisprudence's emphasis on keeping the law abreast of current events might occasionally warrant expanding constitutional freedoms. The framers' procedural devices, he contended, no longer adequately safeguarded the social interest in open discussion. Hence, early twentieth-century speakers required more extensive expression rights if the First Amendment was to fulfill its original purposes of promoting and protecting public debate.82

The framers of the Constitution, Chafee maintained, valued measures that put the protection of free speech almost entirely in the hands of juries because they had experienced royal policies that outlawed advocacy of widely held objections to English rule. Taking the issue of truth away from judges adequately protected majority opinions from suppressive measures be-

cause the average member of the community was likely to sympathize with common criticisms of elected officials and their policies. "Juries," Chafee observed, "will safeguard the criticism of the government of views popular among the electorate." However, the experience of World War I demonstrated that allowing juries to determine the truth of political utterances would not secure minority opinion from infringement by the majority. As Chafee noted, randomly selected members of a community "are far less likely to acquit men who hold unpopular opinions, which nevertheless for the public good ought to be allowed expression." For this reason, he concluded that modern conditions required "a reformulation of the definition of free speech," so that political dissenters could freely express their beliefs. The meaning of the First Amendment had to be expanded to "impose limits on legislation against speech, beyond which statutes become invalid and juries are not permitted to convict."83

Earlier chapters have demonstrated that the mere claim of some "limits on legislation against speech" only seems to expand constitutional expression rights if one ignores the conservative libertarian tradition. Late nineteenth-century treatise writers had already proposed various standards limiting majoritarian power over speech. When seen from the perspective of the dilemma of early civil libertarian constitutional thought, however, Chafee's claim appears as a dramatic step forward. Unlike conservative libertarian claims, Chef’s call for new speech protections could not easily be challenged within the structure of sociological jurisprudence. Progressive opponents of expression rights who asserted that changing social conditions never justified broadening constitutional rights could be justly charged with advocating the sort of rigid, a priori rule that pragmatism condemned. Moreover, rather than disguise their policy preferences as interpretations of the precise standards the framers had intended, Chafee enabled civil libertarians to derive constitutional protections from their understanding of "the purpose free speech serves in social and political life."84 Thus, the new constitutional defense of free speech could accurately reflect "the desires and needs of the individual human being who wants to speak and those of the great

group of human beings among whom he speaks," or what Pound called the individual and social interests in free speech.85

Individual Interest in Free Speech

As noted above, Chafee rejected previous notions that expression rights were best understood primarily as an aspect of some general principle of individual liberty. His hostility to the conservative libertarian tradition's individualist approach to free speech was so strong that, as previously documented, in works allegedly dedicated to the general promotion of expression rights, Chafee systemically omitted evidence supporting claims that the Constitution valued highly the individual's interest in expressing his opinions. In addition to his theoretical objections to the idea of natural law,86 Chafe claimed it was "useless to define free speech by talk about rights." An individual rights approach, he declared, could not provide standards that would resolve First Amendment issues. For every person who claimed a personal right to free speech, another person would claim a personal right not to be harmed by the possible consequences of speech. "Each side," he argued, "takes the position of the man who was arrested for swinging his arms and hitting another in the nose, and asked the judge if he did not have the right to swing his arms in a free country. 'Your right to swing your arms ends just where the other man's nose begins.'"87

For these reasons, Chafee maintained that the Constitution offered the individual's interest in free speech the same limited protection he believed that document offered the individual's interest in free contract. Like other progressive thinkers, Chafee believed that individual economic and expressive interests were subject to regulation for the benefit of the public. "The need for many men to express their opinions on matters vital to them if life is to be worth living," he declared, "must readily give way like other personal desires the moment it interferes with the social interest in national safety."88 Although the socialist Rand School's interest in "the teaching of academic subjects" was a "liberty" protected by "the Fourteenth Amendment to the United States Constitution," that concern was no different from another person's desire to run a barbershop, and

it could constitutionally be forced to yield before any reasonable exercise of the police power.89 Chafee believed that the government was free to regulate commercial speech and obscenity because only individual interests were significantly advanced by those forms of expression. "The First Amendment," he stated, "was not adopted to protect vehicles of advertising and entertainment." While these were "legitimate and beneficial activities," they were similar to "stock-broking and circuses, which receive no constitutional immunity."90

The Social Interest in Free Speech

The First Amendment, Chafe maintained, was designed chiefly to protect the "social interest in the gains from open discussion."91 He insisted that the main fault of previous scholarship was its failure to recognize that these social interests were constitutionally more important than individual interests in self-expression.92 Nevertheless, as most progressives explained, the individual interest of particular speakers corresponded to the social interest of the great body of potential listeners.93 The Constitution might not give much weight to the individual interest of an alien who wanted to speak to an American citizen; however, the social interest in free speech required that citizens not be "denied the privilege of listening to and associating with a foreign thinker." Similarly, Chafe believed that while the individual interest of the Rand School in running their academy could be regulated, the social interest in promulgating their ideas could not.94

This social interest in expression was "the attainment of truth . . . as the basis of political and social progress."95 Truth is important, Chafe declared, "so that the country may not only adopt the wisest course of action but carry it out in the wisest way."96 Although "the value of open discussion is most frequently realized when it is preliminary to political action," Chafe did not believe it was "confined to governmental controversies." "The same policy," he argued, "extends to the making of sound decisions and value-judgments in other matters of public interest, such as art, literature, education, and the relations between men and women."97 In his view, society benefited from

discussions of all matters in which the public might have an interest. Moreover, citizens had a right to debate all cultural and moral subjects because discussion of those topics advanced the citizens' political understanding. "The truth," Chafe declared, "is that there are public aspects to practically every subject." Although "Shakespeare and Whitehead do seem very far away from the next election," "poems and plays and novels" contributed to" the satisfactory operation of self-government." Discussion of such matters enabled "the individual to develop fairness, sympathy, and understanding of other men, a comprehension of economic forces, and some basic purpose of life."98

Chafe recognized that "the attainment of truth is not the only purpose for which the community exists."99 Maintaining order and morality, developing youth, protecting against external aggression, fostering public safety, and promoting the aesthetic sense of the community were other important social interests.100 Legislatures were obligated to afford these social interests the same protection as free speech. Because "it is impossible to satisfy all of these claims, at least in their entirety," Chafe endorsed Pound's balancing test as a means of adjudicating among conflicting social interests. "We must allot a weight to each according to its social value," he claimed, "and then balance them against one another in order to determine how far each can receive legal expression."101 Nevertheless, because free speech was as important as any other social interest, the First Amendment did not permit expression to be sacrificed every time some remote action merely threatened a competing social interest. Speech could be restricted only if it significantly and immediately threatened other social interests. In the passage of his argument that he described as "key,"102 Chafe declared

the true boundary line of the First Amendment can be fixed only when Congress and the courts realize that the principle on which speech is classified as lawful or unlawful involves the balancing against each other of two very important social interests, in public safety and in the search for truth. Every reasonable attempt should be made to maintain both interests unimpaired, and the great interest in free speech should be sacrificed only when the interest in public safety is really imperiled, and not, as most men believe, when it is barely conceivable that it may be slightly affected. In war time, therefore, speech should be un-

restricted by the censorship or by punishment, unless it is clearly liable to cause direct and dangerous interference with the conduct of the war.103

Courts applying this test had to give all speech on matters of public interest the same heavy weight. In contrast to Frankfurter, who once suggested that communist speech "ranks low" "on any scale of social values,"104 Chafe contended that the most obscure members of fringe groups had valid criticisms of current policies. Furthermore, he claimed that restrictions on "insignificant" speech often silenced more significant speakers. "Pertinacious orators and writers who get hauled up," Chafe observed, "are merely extremist spokesmen for a mass of more thoughtful and more retiring men and women." When officials "put the hotheads in jarl, these cooler people do not get arrested—they just keep quiet."105

This emphasis on the social interest in expression suggested a new justification for requiring states to respect free-speech rights, one that did not center on the individual rights protected by the due process clause of the Fourteenth Amendment. Chafe claimed that, although the text of the First Amendment only restricted federal efforts to regulate political dissent, that amendment declared the national interest in free speech. Thus, the federal government's failure to limit speech rights created a presumption that Congress believed the nation would best be served by unregulated debate on matters of public interest. Like the interstate commerce clause, the "negative radiations" of the First Amendment preempted most, if not all, state regulations of speech on matters of national concern.106 State regulations were clearly preempted when, as in the case of World War I, the federal government adopted policies on what speech was and was not to be prohibited. In his analysis of Gilbert v. Minnesota, Chafe asserted that after the federal government "decides to allow a fairly wide range of discussion to the opponents of a war either as a safety valve for discontent or for the sake of obtaining the advantage of their opinions, such national policies will be very seriously blocked if the various states see fit to run amok and establish inconsistent limitations on dissent."107 Thirty years after Gitlow, Chafe still claimed that the

negative radiations of the First Amendment provided the main constitutional basis for restricting local power over speech. In 1956, he declared that "state legislatures" should "give up concerning themselves with subversive activities, and entrust the whole matter of the safety of the nation to the government of the nation."108

The New Scope of Constitutional Free Speech Protection

Chafee presented the clear and present danger test as an unambiguous expansion of the constitutional defense of free speech. Prior to World War I, he claimed, proponents of expression rights had only been concerned with preventing prior restraints and ensuring jury trials in sedition cases.109 When compared with these standards, the clear and present danger test appeared to be a significant step forward in libertarian theory. In contrast to such persons as Corwin, who believed that having juries determine the truth of utterances significantly protected political expression,110 Chafe supported all the free-speech claims raised in the cases from Debs v. United States to DeJonge v. Oregon.111 However, as noted above, the clear and present danger test did not dramatically extend the constitutional meaning of free speech when compared to the standards proffered by either late nineteenth-century conservative treatise writers or transitional figures like Theodore Schroeder and Ernst Freund. These jurists claimed that advocacy of lawless conduct was the only form of speech that could be constitutionally restricted, and Schroeder claimed that even such advocacy could be punished only if an actual injury resulted.112 They would protect all speakers who advocated change by lawful means, even if such speech presented a clear and present danger. These different standards did not simply reflect different attitudes toward the value of expression, but broader differences between conservative and progressive thought.

The direct incitement test favored by earlier libertarians re-fleeted conservative beliefs that individuals were generally free to interact with each other on their own terms. As Abraham

Chayes has noted, "the basic conceptions governing legal liability [in the late nineteenth century] were 'intention' and 'fault.'"113 Thus, government could only punish speakers who had consciously abused their speech rights by either urging criminal conduct or intentionally telling lies. Advocates were judged by their intentions, not by the possible social consequences of their speech acts.

Sociological jurisprudence, however, maintained that legal doctrines should be based on the social consequences of action. As noted in chapter 3, Holmes insisted the law prohibit acts that created a high probability of harm, rather than acts done with a guilty state of mind.114 Holmes and Chafe independently derived their versions of the clear and present danger test from this reinterpretation of the common law of criminal attempt.115 Although he sometimes spoke as if the First Amendment required states to prove that a speaker had intended to cause illegal conduct,116 Chafe explicitly referred his reader to Holmes's opinion in Peaslee v. Commonwealth for the correct definition of criminal intent. In Free Speech in the United States he declared that "to establish criminal responsibility, the words uttered must constitute dangerous progress toward the consummation of the independent offense."117 Thus, abstract discussions of tyrannicide were sufficiently dangerous "to bring such discussions within the range of legislative discretion," even when the speaker had no intention of actually threatening the life of any state official.118

While Chafe offered prominent speakers more protection than did Holmes, his emphasis on the consequences of expression had the same potential to curtail the speakers and speeches that society has the greatest interest in hearing. Chafe s analysis of Herndon v. Lowry clearly illustrated the relatively narrow scope of his version of the clear and present danger test.119 That case concerned the prosecution of a black communist organizer under a Georgia statute that punished efforts to foment insurrection. Although he noted that Herndon did not advocate lawless conduct, Chafe asserted that Herndon was the one free-speech defendant who did not "seem . . . fairly harmless." Herndon was dangerous because he advocated politically explosive doctrines. He insisted that racial justice could be

achieved only through broad remedial measures and basic institutional changes. "Given the unrest of Negroes, share croppers, mill-workers," Chafe claimed that this "demand for equal racial rights, lavish relief, and the virtual abolition of debts might have produced some sort of disorder in the near future." "Smoking is all right," he contended, "but not in a powder magazine."120 Chafe recognized that institutionalized unconstitutional racism was the reason why even peaceful advocacy of civil rights created a clear and present danger of violence. However, while he noted that "the very conditions that cause the grievances render agitation to remove the grievances dangerous,"121 this was not a reason to question the soundness of his version of the clear and present danger test. Chafe would have upheld the long prison sentence given to Herndon in the trial court had the Georgia statute in question specifically prohibited his speech.122 He concluded that the only general lesson one could draw from Herndon v. Lowry was the lack of wisdom in sedition prosecutions in such circumstances, which were "only likely to make matters worse."123

This refusal to defend Herndon's rights cannot be explained by Chafee's insensitivity to racial matters.124 Rather, this failure was rooted in the structure of the new constitutional defense of free speech. What mattered to Chafe was the actual threat presented by a speech, not the speaker's intention to present that threat. Chafe was equally "insensitive" to the advocacy rights of influential speakers who promoted other causes. For example, he asserted that "turbulent persons like Emma Goldman" were properly deported under a federal law that permitted federal officials to decide on the basis of Goldman's political beliefs.125

Chafe believed, however, that the Constitution protected speakers who intended to threaten clear and present dangers but lacked the influence to do so. Chafe never denied that Gitlow had advocated violent conduct, but, like Holmes, he believed that Gitlow had a constitutional right to speak because no one was going to listen. After examining the remarks that led to Gitlow's conviction, he commented, "an agitator who read these thirty-four pages to a mob would not stir them to violence, except possibly against himself."126 This observation implies

that Chafe believed the First Amendment did not protect speakers who might incite mobs to violence by expressing Gitlow's ideas more eloquently.

These difficulties with the scope of the new constitutional defense of free speech were compounded by the varied social interests Chafe was willing to balance against First Amendment interests. As noted above, Chafe believed that legislatures could consider such social interests as morality, the development of the young, and aesthetics when deciding whether to regulate political expression. When the failure of citizens to cooperate voluntarily with the government would result in "a serious injury," the government had the power to punish those who urged others to exercise their legal right not to cooperate.127 Chafe endorsed the Schenck decision because, at the very least, the defendants in that case urged citizens not to assist governmental efforts to raise troops during World War I.128 Indeed, Free Speech in the United States suggested that preventing litter would be a constitutionally sufficient reason to curtail advocacy rights. On these grounds, states could severely restrict, if not prohibit, peaceful leafleting.129

There were, however, circumstances where sociological jurisprudence should have expanded the scope of the constitutional defense of free speech. The conservative libertarian tradition, with the exception of Schroeder, regarded advocacy of any crime as outside the limits of First and Fourteenth Amendment protection. In Whitney, however, Brandeis suggested that the social interest in freedom of speech outweighed the social interest in preventing minor crimes. For this reason, he claimed that advocacy of trespass could not be constitutionally punished, "even if there was imminent danger that advocacy would lead to trespass."130

By relying on the law of criminal attempt, Chafe failed to take advantage of all the circumstances in which a balancing test protected speech that the inflexible direct incitement standard prohibited. One can attempt both major and minor crimes. If Holmes's definitions are used, then the persuasive advocate of trespass has committed a criminal attempt punishable by law. Although Chafe never explicitly stated whether any successful advocacy of crime was beyond the pale of the First Amend-

ment's protection, his editing implies that he accepted this consequence of his version of the clear and present danger test. When he discussed the Whitney concurrence, he quoted almost the entire paragraph in which Brandeis asserted that the harm must "be relatively serious" to justify repression of speech. The only passage Chafe hid from his reader's view was the one where Brandeis claimed that certain violations of minor laws were examples of insufficient harms.131

Yet, as the difference between Brandeis and Chafe illustrates, one could clearly make more libertarian claims within the structure of Chafee's arguments than he in fact made. Future defenders of expression rights could and did maintain that Chafe gave insufficient weight to the social interest in debate about matters of public importance. Some civil libertarians would later claim that government would correctly balance social interests in the highest percentage of cases if officials always protected free speech.132 Nevertheless, this civil libertarian constitutional defense had yet another problem to overcome. Whatever the proper evaluation of constitutional freedoms, the issue remained whether judges could recalibrate the scales after elected officials determined that other social interests outweighed the social interest in free speech.

Judicial Activism on Behalf of Free Speech

Although Chafe believed that clear and present danger marked the boundary between constitutionally protected speech and speech legislatures had the power to restrict, he remained troubled by judicial capacity to patrol the border. An ardent opponent of the freedom of contract, he was dedicated to the proposition that elected officials were both authorized and best equipped to determine what conduct should be regulated in the public interest. This position had always been thought to demand judicial restraint whenever the people's representatives voted to limit existing speech rights. Judicial protection of political dissent, progressive jurists agreed, was an illegitimate product of a judge's personal policy preferences disguised as an appeal to fundamental individual rights.

Chafee's initial free-speech writings did not explicitly consider whether courts could declare speech restrictions unconstitutional. Like other early civil libertarian jurists he maintained that the central issue in Debs was "the proper construction of the Espionage Act."133 The First Amendment was relevant to that question, but only as a statement of the "policy to be observed by courts in applying constitutional statutes to utterances." Thus, Chafe endorsed Hand's assertion that federal decisions affirming the conviction of political dissenters were objectionable because the national legislature had not specifically prohibited verbal opposition to American war policies. Legislation, he insisted, "should not be construed to reverse this national policy of liberty of the press and silence hostile criticism, unless Congress had given the clearest expression of such an intention in the statute."134

When first confronted with explicit legislative prohibitions of specific political doctrines, Chafe tended to concede that elected officials had the constitutional power to suppress political debate if they believed that restrictions were necessary to avoid clear and present dangers. In 1920, he concluded that "Congress alone can effectively safeguard minority opinion in times of excitement."135 Chafe later argued that the national legislature could forbid all discussions of tyrannicide, require union leaders to take loyalty oaths, and restrict speech during strikes if it thought such measures necessary.136 Furthermore, he suggested that the federal government could require a less stringent connection between advocacy and action than that provided for by the law of criminal attempt. While "the ordinary tests punish agitators just before [the pot] begins to boil over," Chafe declared that "Congress could change those tests and punish it when it really gets hot."137

More generally, Chafe maintained that a constitutional gap separated the scope of First Amendment rights and judicial power to protect advocacy. "Our Bill of Rights," he insisted, "performs a double function." The first ten amendments "fix a certain point to halt the government abruptly with a 'thus no far and no farther,' "but "long before that point is reached they urge upon every official of the three branches of the state a constant regard for certain declared fundamental policies of Ameri-

can life."138 This meant that courts could not strike down laws merely because legislators did not exhibit the high regard for free speech demanded by the Constitution. The people's representatives had the power to restrict much socially beneficial speech. "What is constitutional," Chafe frequently observed, "may be very unwise." For this reason, Chafe thought that libertarian efforts should be primarily directed at convincing elected officials to refrain from restricting expression. In these debates, public welfare considerations mattered more than abstract constitutional standards. Thus, "in endeavoring to oppose suppressive measures," Chafe "found it best to keep on the level of wisdom and policy as much as possible." In the 1950s, for example, he declared that libertarian objections to McCarthyism "should be put on the grounds of wisdom and American traditions, rather than on Constitutionality."139

Chafee's understanding of the nature and sources of legal doctrine supported this emphasis on public policy. Following Holmes, Freund, and other progressive jurists, Chafe identified law with the actual decisions of courts. "What a majority of the Supreme Court votes," he stated, "does have considerable bearing on truth in constitutional matters."140 Thus, political dissenters had the right to say whatever a majority of justices were willing to protect. Narrow Supreme Court interpretations of the First Amendment, in his view, excluded broader libertarian standards from the constitutional meaning of free speech.141

Moreover, the events of World War I taught Chafe that public opinion was the crucial element in determining the constitutional standards actually applied by courts. If the people passed sedition laws, "trial judges will be found to adopt a free construction of the act so as to reach objectionable doctrines."142 "Final limits upon government power over discussion," he learned, "are of comparatively small service in the almost total absence from the national consciousness of any genuine belief in the usefulness of the open expression of unpopular ideas."143 In this environment, technical constitutional defenses of expression were useless; rather, a general effort to persuade the people of the value of public debate was needed. As Chafe noted in the conclusion of Free Speech in the United States, "in the long run the pub-lie gets just as much freedom of speech as it really wants."144

Chafe never disavowed his belief that an educated populace was the only permanent security for expression rights, but as he grew older he increasingly advocated more judicial activism on behalf of free speech. He began "to doubt whether Holmes was right" when that jurist maintained "that Congress is the guardian of the liberties of the people as well as the courts." Although Chafe declared that he would "like to have legislatures and other lawmaking bodies protecting our civil rights," he became convinced that "we must in times of pressure and not to say hysteria look to the courts to guarantee them for us."145

To convince his contemporaries that courts should protect expression rights, Chafe had to explain why speech differed from commercial behavior, which sociological jurisprudence insisted elected officials could freely regulate. Progressive jurists had previously recognized one important distinction between speech and property. Property, Pound and Schofield declared, was an individual interest; speech was a vital social interest. "Freedom of Speech in War Time" reiterated that point. "The Fourteenth Amendment and the obligation of contracts clause," Chafe declared, only protected "important individual interests." Expression, however, was a vital social interest and thus could not "readily give way like other personal desires the moment it interferes with the social interest in national safety."146 However, neither Chafe nor any other progressive jurist thought the distinction between individual and social interests justified any special judicial solicitude for expression rights. The crucial question such a claim had to answer was why judges were entitled to second-guess legislative determinations that other social interests outweighed the social interest in free speech.

Chafe first suggested a distinction between judicial activism on behalf of expression and economic rights in a 1922 article attacking New York's effort to close the socialist Rand School. Legislators, he contended, "can be trusted to recognize dirt or discriminate between dangerous and harmless machinery." But in light of the human "tendency to regard what one dislikes as a menace to the social order," elected officials "cannot be trusted to discriminate between dangerous and harmless ideas."147 In other words, because of biases unique to free-speech issues,

legislators could not competently evaluate the factual disputes underlying First Amendment controversies. Hence, given sociological jurisprudence's insistence that social interests should be balanced by the institution most capable of doing so, courts were the appropriate forum for resolving free-speech conflicts.

In the 1920s and 1930s, Chafee's writings occasionally intimated that sociological jurisprudence's insistence on democratic governance might similarly justify special judicial solicitude for expression rights. Those in power, he contended, should not be allowed to ensure their reelection by muting criticism of their policies. "A freedom which does not yet extend to a minority," his 1920 analysis of Abrams v. United States noted, "would be a very partial affair, enabling the majority to dig themselves in for an indefinite future." Although he recognized that "the vote of the majority of the electorate or the legislature is the best way to decide what beliefs shall be translated into immediate action," Chafe maintained that it was "inadvisable for the government to seek to end a contest of ideas by imprisoning or exiling its intellectual adversaries."148 In 1931 he suggested that those justices who typically voted to sustain economic regulations and strike down expression regulations wished to give "much of the control [of business] to the elected representatives of the multitude who are virtually affected by business."149

A number of early civil libertarians similarly distinguished free speech and economic policies. In The Police Power, Freund suggested that while "conditions which affect health and morality are primarily subject to the police power," "our constitutions proclaim the principle of individual liberty" for "moral, intellectual and political movements." Twenty years later, Dewey claimed that Holmes had voted to sustain economic regulations because he recognized that judges should defer "to the beliefs of others to the extent of permitting them a free competition in the open market of social life." Frankfurter similarly maintained that "Mr. Justice Holmes attributed very different legal significance to those liberties of the individual which history has attested as the indispensable conditions of a free society from that which he attributed to liberties which derived merely from shifting economic arrangements." Finally, in a stu-

dent note, Karl Llewellyn insisted that while "the majority is to rule, and the minority is to obey . . ., theminority shall have reasonable opportunity to object before laws are passed, and to turn itself, by peaceful conversion, into a majority if so be it can."150

Nevertheless, in the two decades following passage of the Espionage Act, no one developed these insights into a full-blown theory of the judicial function. Rather, as noted in chapter 3, civil libertarians were content to piggyback judicial protection of expression onto judicial protection for economic rights. As long as conservative justices struck down laws that abridged the freedom of contract, liberal jurists unashamedly used those precedents to strike down laws that abridged the freedom of speech. Chafee accepted this practice. In 1928, he insisted that Lochner v. New York and other such cases should "at least. . . serve as precedents justifying similar protection for freedom of speech."151

The New Deal turnaround of 1937 dramatically foreclosed this manner of defending free speech. A Supreme Court increasingly dominated by jurists committed to sociological jurisprudence repudiated what Justice Black would later call the "Allgeyer-Lochner-Adair-Coppage constitutional doctrine."152 In West Coast Hotel v. Parrish, a five-to-four majority began the process of overruling or discrediting those freedom of contract cases that had served as the only foundations for judicial activism on behalf of expression rights. Chief Justice Hughes's majority opinion declared that "liberty under the Constitution [is] necessarily subject to the restraints of clue process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process."153

This conception of constitutional rights and legislative power seemed to preclude special judicial solicitude for any individual freedom, but some civil libertarians refused to surrender their power to protect political and social commentary. Only one year after the Court had seemingly renounced judicial activism generally, Justice Stone suggested that the justices might only be changing emphasis. In United States v. Carolene Products Co., he agreed that courts should sustain economic regulations that had any rational basis. However, in a footnote undoubtedly in-

fluenced by the previous speculations of Chafee and others, Stone recommended that "legislation which restricts those political processes which can ordinarily be expected to bring about the repeal of undesirable legislation" be subject "to more exacting judicial scrutiny." As examples of appropriate exercises of judicial power, he pointed to Brandeis's concurrence in Whitney, Holmes's dissent in Gitlow, and previous Supreme Court decisions that held state governments had violated constitutional free-speech guarantees.154

Chafee immediately seized upon the theory of judicial review hinted at in the Carolene Products footnote. Over the next five years, he used his position on the Bill of Rights subcommittee of the American Bar Association (ABA) to promote Justice Stone's interpretation of the judicial function. Chafee was particularly active in the fight to have mandatory flag saluting declared unconstitutional. Although the specific issue in Board of Education v. Barnette and Minersville School District v. Gobitis concerned religious freedom,155 Chafee wrote those sections of the ABA's amicus brief that claimed compulsory saluting of the flag also violated constitutional expression rights. He urged the Court to recognize that a "more exacting test of validity" was necessary when judges reviewed policies that infringed on the freedom of speech.156 "In the ordinary due process case," Chafee declared, "a presumption may properly be held to run in favor of the validity . . . of legislation" because courts must ensure that "the processes of government shall not be crippled but shall remain flexible to meet changing public needs." However, no such presumption was justified when First Amendment rights were restricted. In such cases, "the Court should itself be convinced of the existence of a public need" that outweighed the social interest in freedom. In other words, because there were reasons to think that elected officials had not responsibly balanced the social interests affected by restrictions on speech, judges had to independently determine whether particular instances of state censorship advanced the public good. In support of this position, Chafee quoted the relevant portions of the Carolene Products footnote and italicized Justice Roberts's assertion in Schneider v. New Jerseg that "mere legislative preferences or beliefs respecting matters of public convenience may

well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions."157

When he updated Freedom of Speech in 1941, Chafee elaborated and improved Justice Stone's analysis of the judicial function. Rather than simply asserting that the freedom of speech could be constitutionally distinguished from the freedom of contract, Chafee insisted that the same principles justifying judicial deference to economic regulations demanded judicial activism on behalf of expression. "The critical judicial spirit which gives the legislature a wide scope in limiting the privileges of property owners," he contended, "will also tend to allow speakers and writers a wide scope in arguing against those privileges." Proponents of sociological jurisprudence, Chafee explained, recognized that "statutes to be sound and effective, must be preceded by abundant printed and oral controversy." Thus, if government refused to allow open political debate on the merits of legislative proposals, then courts had no reason to presume that elected officials had decided wisely or in a manner responsive to democratic sentiment. "Discussion," Chafee insisted, "is really legislation in the soft." For this reason, any restriction on the scope of political debate would be a de facto restriction on the legislature's substantive powers. Policies that could not be advocated would never be enacted. This inflexible limitation on legislative power to meet social needs was precisely the problem with the freedom of contract. "Drastic restrictions on speeches and pamphlets," Chafee maintained, "are comparable to rigid constitutional limitations on lawmaking. A statute which prevents an orator from questioning the present distribution of property tends to crystallize that distribution in somewhat the same way as a rigid interpretation of the due process clause."158

In other words, the guarantee of judicial activism on behalf of free speech justified judicial deference to social and economic policy choices made by the people's elected representatives. Courts could only defer to the policy decisions of elected officials if justices were prepared to protect speech rights; otherwise jurists could not honestly claim that those policies reflected an educated majoritarian opinion. "It is really not sur-

prising," Chafee contended, "that Justice Holmes dissented in both Lochner v. New York and Abrams v. United States. Liberty for discussion which may lead to the formation of a dominant opinion," he concluded, "belongs side by side with the liberty of the lawmakers to transform the dominant opinion into the statute that is its natural outcome."159

Free Speech and Private Property

By distinguishing expression rights from economic rights, Chafee could defend judicial activism on behalf of free speech in a manner consistent with the basic tenets of progressive and liberal thought. However, that distinction inhibited efforts to develop constitutional arguments that would adequately promote debate on matters of public importance, the very goal Chafee claimed had motivated his efforts on behalf of First Amendment rights. Although, as noted above, Chafee insisted that democratic social and economic institutions were necessary elements of a democratic society, he maintained that judicial decisions promoting positive liberties undermined the democratic values supporting judicial activism on behalf of free speech.

This decision to divorce judicial protection for free speech from judicial protection for the other rights necessary to the effective exercise of expression rights represented a dramatic break in the American libertarian tradition. With the exception of Schroeder, American libertarians had historically agreed that both economic and expression rights were vital to a functioning system of freedom of speech. Conservative libertarians claimed that laissez-faire economic policies freed persons from a dependence on governmental largess that inhibited their efforts to express their opinions on matters of public interest. Hence, Burgess and other treatise writers believed that judicial decisions protecting the freedom of contract also implicitly protected the freedom of speech. Early civil libertarians insisted that democratic societies would establish democratic economic institutions so that individuals would have the independence, leisure time, and access to intellectual resources necessary for participating effectively in the marketplace of ideas. Thus, Brandeis suggested that, as long as judges were protecting indi-

vidual economic rights, they ought to protect the individual economic rights that progressives thought would best promote public debate.160 Chafee's new constitutional defense of free speech, however, sharply distinguished democratic inputs from democratic outputs. In his view, judges had no business promoting any economic liberty, even those liberties necessary to a functioning system of free speech.

Chafee's unwillingness to justify judicial solicitude for the liberties he considered the economic and social prerequisites of a functioning system of freedom of expression stemmed from the nature of the democratic process model of the judicial function. The rationale of the Carolene Products footnote depends on the assumption that substantive policies and political processes are independent of each other. Courts must be able to secure democratic processes without limiting elected officials' policy choices. If economic and social policies affect electoral outcomes, then the principled distinction Chafee and Justice Stone tried to make between judicial activism on behalf of free speech and judicial activism on behalf of economic rights breaks down. Elected officials could subvert democratic processes by either restricting political dissent or implementing policies that impoverished their political rivals. Under these conditions, the judicial obligation to police "those political processes which can ordinarily be expected to bring about the repeal of undesirable legislation" might obligate courts to regulate the distribution of economic resources to ensure that most persons have some meaningful access to the democratic process.

Thus, followed to its logical conclusion, the claim that judges should ensure that legislation respond to the needs and desires of democratic majorities could justify judicial activism on behalf of economic rights. That activism might seek to ensure that the social and economic policies enacted by elected officials provided all persons with the resources necessary to participate in the political life of their communities. The Carolene Products rationale might require, for example, that courts order state governments to provide all citizens with a minimum standard of living.

Unfortunately, even if such decisions were consistent with the underlying structure of sociological jurisprudence, judicial protection of positive liberties would have betrayed the origi-

nal purpose of that approach to legal doctrine. Progressives developed sociological jurisprudence as a rhetorical weapon in their fight to return economic power to the elected branches of government. They were unlikely to accept or be interested in arguments that suggested their legal principles merely provided a different basis for judicial activism on behalf of economic rights or supported a different set of economic rights. In short, neither Chafee nor his audience was prepared to endorse any constitutional argument that explicitly permitted courts to protect specific economic rights. If the Carolene Products footnote justified such activism, then the democratic process model of the judicial function was not an acceptable basis for judicial activism on behalf of free speech.

To salvage some form of judicial activism on behalf of expression rights, Chafee made a fateful decision. The constitutional defense of free speech, he declared, would implicitly pretend that the distribution of economic resources did not affect the system of freedom of expression. Throughout his life Chafee insisted that "speech should be fruitful as well as free,"161 but he firmly maintained that the project of making speech fruitful was "a problem, not for law" (i.e., the courts).162 The First Amendment, he claimed, was "directed only at government impairment of discussion." Judges were not authorized to remedy those obstructions to "the open and effective discussion of public affairs" that were caused by inequalities in private resources.163 While Chafee continually asserted that "the remedy for a restrictive law is in the Constitution," he simultaneously confessed that "the remedy for private restraints on fair discussion lies in an aroused public opinion and the enterprise of individuals and the community, with the possibility of affirmative governmental action in the background."164 Speakers who were unable to rent private facilities for their discourse had no legal recourse, provided their inability was not caused by official action.165 That and similar barriers to attaining truth on matters of public interest consequently followed those substantive policies that constituted the exclusive domain of the elective branches of government.

Chafee detailed this position in his last book, The Blessings of Liberty. In his "Does Free Speech Produce Truth?" chapter he

noted various "obstacles to the automatic emergence of truth" from free speech, of which inequality of wealth was the most significant.166 Maldistribution of economic resources, Chafee admitted, biased the democratic process because of "the increasing tendency for the most effective instrumentalities of communication to be bounded and shaped by persons who are often on one side of many public questions." However, courts could do nothing to ameliorate this consequence of material inequality. Chafee conceived of "the First Amendment and other parts of the law" as "a fence inside which men can talk." "Lawmakers," he insisted, had to "stay on the outside of that fence. But what the men inside the fence say when they are let alone is no concern of the government."167 Although the end of the First Amendment was the attainment of truth, judges could contribute to this end only by striking down governmental actions that banned political dissent. Courts had no power to prevent other social actors from interfering with the efficient functioning of the marketplace of ideas. As a result, Chafee admitted that the freedom of speech might be fully protected in a situation where "not a mite of truth has been attained or communicated."168

To be sure, the new constitutional defense of free speech required that courts sustain economic legislation designed to make speech more fruitful. As noted above, Chafee endorsed legislative proposals that would make economic resources more available to potential speakers. In particular, Chafee thought that government should provide public forums where all speakers could air their opinions. Such policies would prevent ideas from going unheard merely because their adherents lacked the resources to promote them privately.169 Furthermore, Chafee believed that elected officials had the power to remove some private economic obstructions to an effective system of free speech. He maintained that to the extent "the instrumentalities of communications are businesses, they must be expected to share the [statutory] burdens of other businesses." For this reason, the communication industry's "marketing transactions" were subject to the antitrust laws.170 When the Associated Press sought to give one newspaper in every community the exclusive right to determine whether any other paper could use their

news services, Chafee endorsed the government's effort to prosecute under the Sherman Act. He further suggested that the Associated Press be required by statute "to regard itself as a public service open to all reputable newspapers who would pay the regular price for its news services."171

Although Chafee thought that elected officials had a constitutional duty to create a social environment in which all citizens would have the independence and wherewithal necessary to express their opinions, he conceded that this obligation was not judicially enforceable. Judges, Chafee insisted, had to sustain whatever social and economic policies the legislature passed, even policies motivated by a desire to weaken the economic power of political dissidents, as long as such policies did not directly punish speech.

Moreover, Chafee believed that the First Amendment actually impeded state efforts to equalize access to the marketplace of ideas. Elected officials could provide resources that enable impoverished advocates to advance their ideals, but legislation that limited the expressive uses of private property violated the free-speech rights of economically privileged speakers. Governmental regulation of the communications industry, Chafee claimed, had to be strictly "confined to marketing transactions—selling news or radio programs and leasing films."172 Once government attempted to regulate actual efforts to persuade, the judicial obligation to police the democratic process required that such legislation be declared unconstitutional, even if the statute in question was designed to remove an economic impediment to a more democratic society. An enterprise, Chafee asserted, must "be left completely free to make up its own package of news and ideas; but the package, once it was made up, would have to be marketed on fair terms."173 This interpretation of the democratic process gave property owners the exclusive right to determine what opinions their holdings would promote. Statutes requiring newspapers to publish differing opinions, on this theory, unconstitutionally abridged speech, and the judiciary had to strike down such laws under the rationale set out in the Carolene Product footnote. Whether excluded speakers had other forums to express themselves was not constitutionally relevant. "Liberty of the press," Chafee

wrote, "is in peril as soon as the government tries to compel what is to go into a newspaper."174

Chafee never considered other possible constitutional relationships between free speech and private property. Indeed, by dividing the constitutional universe into substantive policies and democratic processes, he contributed to an environment in which the empirical and ideological connections between free speech and the distribution of economic resources would be constitutionally imperceptible. From this perspective, the difficulty with Chafee's analysis is not simply that he opposed judicial activism that promoted the economic conditions necessary for effectively exercising free-speech rights. The merits of such activism is the subject of fair scholarly debate.175 More disturbing about Chafee's writings is their provision of few, if any, standards for evaluating legislation that mixes questions of property and expression. Rather, his democratic process model of the judicial function assumes that such problems are trivial or nonexistent. The clear and present danger test, deliberately tailored to disregard economic structure, provides no meaningful assistance in resolving such modern problems as whether corporations have the same free-speech rights as individuals or whether a person can enter a shopping center, otherwise held open to the public, for the purpose of passing out political literature.

At this point, Chafee's expository and historical analyses of free speech merge to obscure the same questions. By ignoring all substantive due process defenses of free speech and presenting the progressive bad tendency test as the conservative challenge to libertarian constructions of the First Amendment, Chafee confined free-speech debate within the parameters marked by sociological jurisprudence while appearing to discuss the full spectrum of free-speech debate in the United States. Within these parameters, the defense of expression rights still had to answer the difficult question raised by Corwin concerning how constitutional protection of free speech could be consistent with majoritarian democratic principles. Chafee's historical writings, however, excluded from the realm of discourse the questions raised by late nineteenth-century conservatives, Schroeder, and early civil libertarians concerning the relationship between free speech and the economic system guaranteed by the Constitution.