1. Kalven (1988); Emerson (1977), p. 740; Powe (1987a), p. 250; Levy (1985), p. xix; 376 U.S. 254 (1964).

2. Rabban (1981), p. 586, 579. See Chafee (1941), pp. 497-509; R. Smith (1985), pp. 92-119; Fiss (1986), p. 1405.

3. See especially Levy (1985), p. x ("the American experience with a free press was as broad as the theoretical inheritance was narrow"). For attacks on Levy's specific conclusions, see Rabban (1985); D. Anderson (1986).

4. See especially Rossiter (1962), p. 136 ("One may search their writings in vain for evidence of genuine concern for the freedom of religion and expression"). For a summary of previous scholarly accounts of conservative attitudes toward free speech, see Graber (1988), pp. 19-24.

5. See, e.g., Murphy (1979), p. 40.

6. See, e.g., Murphy (1979).

7. See especially Rabban (1983); Rabban (1981); Murphy (1972).

8. 393 U.S. 948 (1969); 485 U.S. 46, 99 L.Ed 2d 41; 491 U.S. —,105 L. Ed. 2d 342; See especially Smolla (1988), p. 303 ("the Supreme Court's opinion in Falwell v. Flynt is a triumphant celebration of freedom of speech"); Loewy (1989), p. 175 ("the Supreme Court has struck a major blow for freedom in Johnson "); Nimmer (1984), p. vii; Kalven (1988).

9. See especially Friedman (1985), pp. 18-19. For a discussion of the influence of "evolutionary functionalism" in contemporary legal history, see Gordon (1984), pp. 59-67; Gordon (1981), pp. 1028-36.

10. Chafee (1941), p. 509. See Bollinger (1986), p. 144.

11. Chafee (1928b), p. 97; Nimmer (1984), pp. 1-20; Kalven (1988), p. 124. These points are discussed at length in chapters 4 and 5.

12. Rabban (1981), pp. 590-91 and n. 429 (citing other sources).

13. Rabban (1983), p. 1290; Rabban (1981), p. 590. See also Levy (1985), especially p. 9 (arguing that Chafee "anticipated the present" when he claimed that the framers of the Constitution intended to abolish the crime of seditious libel).

14. Chafee (1941), p. 359.

15. See especially Rabban (1981), pp. 559-79; A. Anderson (1980).

16. Chafee (1941), p. 360.

17. See J. White (1984), p. 6.

18. See Skinner (1974), pp. 299-300; Gordon (1984), p. 101; R. Smith (1988), pp. 88, 98; Tulis (1987), p. 15.

19. 198 U.S. 45 (1905) (declaring constitutional laws limiting the hours that bakers could work).

20. The claims made in this paragraph and the following one are discussed at length in chapter 5.

21. Melville Nimmer is the only major contemporary civil libertarian who devotes some attention to these problems in a treatise devoted to the general theory of the First Amendment. See Nimmer (1984), pp. 1—15-16.

22. See Barron (1967); Fiss (1987); Powe (1983).

1. Burgess (1923), p. 26.

2. See Crick (1959), pp. 26-29.

3. E. L. Godkin (1831-1902) was founder and editor of the Nation, a leading intellectual weekly in the late nineteenth century. Under Godkin's direction, the Nation held an unswerving allegiance to the principles of laissez-faire, sound currency, free trade, civil service reform, and anti-imperialism. See Grimes (1953), especially pp. v-vi, 13-36 (quoting Godkin's editorials on these subjects). Godkin is sometimes thought of as an English liberal. However, as Spencer's career illustrates, the beliefs of late nineteenth-century American conservatives were nearly identical to those of middle nineteenth-century English liberals.

4. Henry Adams (1838-1918) was a prominent conservative historian and social critic. Although he was far less concerned with laissez-faire economics than were his counterparts, he actively supported civil service and tariff reform, two major concerns of conservative intellectuals, who tended to be political Mugwumps. Furthermore, Adams frequently argued that citizens should not rely on the government to do anything and, at least in the late nineteenth century, believed that the only economic reform the country needed was a return to honest government. H. Adams (1918), p. 500; H. Adams (1968), p. 185; H. Adams (1958), pp. 326-31; H. Adams (1930), p. 357.

5. Thomas Cooley (1824-1898) was a professor of law at the University of Michigan, a judge on the Michigan Supreme Court, and the first chairman of the Interstate Commerce Commission. Cooley is best known for his Constitutional Limitations, first published in 1871; that work was considered the standard authority on constitutional law in the late nineteenth and early twentieth centuries. Although scholars have questioned the older view of Cooley as an apologist for the rights of business enterprises, his works were frequently cited as establishing that the due process clause of the Fourteenth Amendment protected economic freedoms.

6. Christopher Tiedeman (1857-1903) was the author of several prominent treatises and a professor of law at the University of Missouri, the University of the City of New York, and the University of Buffalo. Tiedeman's most influential work, Limitations of Police Power, first published in 1886, argued that the Constitution limited the powers of government to those consistent with the Latin maxim, sic utere tuo, ut alienum non laedas (so use your own as not to injure another). See Tiedeman (1886), p. 2.

7. John Randolph Tucker (1823-1899) was a professor of law at Washington and Lee University, a six-term congressman who chaired the House Judiciary Committee, a prominent lawyer who numbered Jefferson Davis as one of his clients, and the author of a well-known constitutional law treatise. In The Constitution of the United States, Tucker argued that legislative power was limited by Herbert Spencer's social Darwinist principles of political economy. See Tucker (1899a), pp. 24, 45.

8. David Brewer (1837-1910) was one of the first Supreme Court justices to claim that maximum-hours laws violated the Constitution. See Holden v. Hardy, 169 U.S. 366 (1898); Adkin v. Kansas, 191 U.S. 207 (1903). Brewer's attitude toward economic regulations was best expressed in Budd v. New York, 143 U.S. 517, 551 (1892) when he declared that "the paternal theory of government is to me odious." See generally Rossiter (1962), p. 149; Gainer (1965); Curtis (1986), p. 191.

9. John Marshall Harlan (1833-1911) is rarely included in discussions of late nineteenth-century conservatism because of the support he gave to black civil rights in the Civil Rights Cases, 109 U.S. 3 (1883), and Plessy v. Ferguson, 163 U.S. 537 (1896). However, Harlan's status as a defender of the constitutional status of private property is second to none. Harlan wrote several major court opinions that struck down governmental economic regulations as violations of due process. See Coppage v. Kansas, 236 U.S. 1 (1915); Adair v. United States, 208 U.S. 161 (1908); Chicago, Burlington and Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897). Although he dissented in Lochner v. New York, 198 U.S. 45 (1908), his opinions in Powell v. Pennsylvania, 127 U.S. 678, 684 (1888), and Mugler v. Kansas, 123 U.S. 623 (1887), provided the basis for the central claim of Justice Peckham's majority opinion: the Supreme Court would closely scrutinize legislative means to ensure that the legislature had intended a legitimate end.

This chapter contends that a distinct group of nineteenth-century conservative thinkers were committed to both the rights of business enterprises and the broader issues of civil liberties. Although my subject matter is free speech, I should also note that both Oswald Garrison Villard and Moorfield Storey, two founders of the NAACP, were conservatives on economic matters. See Wreszin (1965); M. A. Howe (1932). In a similar vein, Tiedeman was one of the first American jurists who argued that the Fourteenth Amendment barred states from restricting interracial marriages. Tiedeman (1886), pp. 536-37.

10. Summer (1982), p. 98.

11. See Muller v. Oregon, 208 U.S. 412, 421 (1908) (states could protect a "woman's physical structure" by limiting the number of hours that she could be employed); Cooley (1878), p. 527 (states should have the power to censor indecent literature).

12. Hofstadter (1955b), p. 8. See McCloskey (1951), p. vii; Eric Goldman (1952), p. 67; Rossiter (1962), p. 131; Fine (1956), p. 31; Roche (1963b), p. 135; Hurst (1956), pp. 9-10; Parrington (1930), pp. 18-19; Lustig (1982), p. 83.

13. See especially Burke (1973), pp. 119-20. For a study of American conservative thought before the Civil War, see Rossiter (1962), pp. 97-127.

14. Spencer (1896), pp. 357-58.

15. Burgess (1934), p. 392; Spencer (1972), p. 15; Carnegie (1908), p. 145; Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897); Grosjean v. American Press Co., 297 U.S. 233, 244 (1936); Butcher's Union Co. v. Crescent City Co., 111 U.S. 746, 757 (1884) (Field, J., concurring). See Tucker (1899a), p. 12; Sutherland (1917), p. 203; Judson (1891), p. 873.

16. Sumner (1982), pp. 60, 24.

17. Spencer (1902), p. 83. See Burgess (1927), p. vi (noting that political science would "not advance far except under the methods of fullest toleration of investigation or discussion").

18. H. Adams (1886), pp. 446-47 (citing John Stuart Mill). See also Cooley (1873), pp. 668-69, n. 1 (deriving constitutional protection for free speech and private property from the principles stated in On Liberty ).

19. Burgess (1890a), pp. 86-87; Sumner (1982), p. 100; Sutherland (1917), p. 201. See Tiedeman (1886), p. 189 (deriving the right of free speech from the right of the private individual to pursue happiness).

George Sutherland (1862-1942) is generally considered the intellectual advocate for those conservative justices who sought to declare much of the New Deal unconstitutional. Chronologically Sutherland should be considered an early twentieth-century conservative, but he never wavered from the principles of late nineteenth-century conservatism that he learned as a law student. In opinions like Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934) (Sutherland, J., dissenting) (moratorium on mortgage foreclosure violates the contracts clause), Adkins v. Children's Hospital, 261 U.S. 525 (1923) (mini-mum-wage laws violate the due process clause), and Carter v. Carter Coal Co., 298 U.S. 238 (1936) (federal regulations of wages and prices in the production of coal are beyond the scope of the commerce clause), Sutherland sought to limit the power of the state and federal governments to regulate the economy. Before serving on the Supreme Court, Sutherland was a Republican senator from Utah, a president of the American Bar Association, and a prominent adviser to President Harding.

20. Sumner (1963), p. 145. Burgess (1898), p. 211; Burgess (1927), PP. 333-34. See Burgess (1895), pp. 413-16; Burgess (1934), pp. 384-85; Burgess (1915), p. 382. See also Burgess (1927), pp. 29, 142, 152-53. For a discussion of this theme in Jeffersonian and Jacksonian writings, see Lustig (1982), pp. 46-52, 79-83.

21. United States v. Cruikshank, 92 U.S. 542, 552 (1875); Tiedeman (1886), p. 189; Brewer (1886), p. 364. See Cooley (1878), p. 518; Tucker (1899b), p. 670; H. Brown (1900), p. 330. Many conservatives were critical of the way in which the press performed that function. See Rosenberg (1986), pp. 190-93. Nevertheless, although they occasionally proposed procedural devices to make libel suits easier to bring, conservatives endorsed a libertarian interpretation of the substantive law of libel. See chapter 1, nn. 117-137 and accompanying text.

22. Sumner (1982), pp. 93-94; Cooley (1878), pp. 540-41.

23. People v. Hurlbut, 24 Mich. 44, 107 (1871) (opinion of Cooley, J.); Burgess (1934), P. 388. See Pomeroy (1870), p. 108; Tucker (1899a), p. 106; Henry Black (1895), p. 373.

24. See McClosky and Brill (1983), pp. 48-58; McClosky (1964), pp. 365-67; Huntington (1981), pp. 18, 266, nn. 8-9 (citing surveys).

25. H. Adams (1886), pp. 446-51; Justice Henry Brown, a member of the Lochner majority, also pointed to the probability that "the abuses would soon outnumber the advantages" if statutes prohibiting certain forms of dissent were enforced. H. Brown (1900), p. 337.

26. Burgess (1927), pp. 334-35.

27. Burgess (1923), pp. 37-38; Tucker (1899c), p. 84; Sumner (1934), p. 266. The Democratic party platform in 1900 stated that “imperialism abroad will lead quickly and inevitably to despotism at home." Faulkner (1959), p. 274. See Godkin (1893), p. 173; Brewer (1899), p. 15; King (1967), p. 270 (quoting John Marshall Harlan); Cooley (1893), p. 394.

In general, the opposition to imperialism was led by older Mugwumps, who had advocated laissez-faire economics and honest government for more than thirty years. See Beisner (1985), pp. 9-11; Tompkins (1970), pp. 148-51.

28. Edward Atkinson (1827-1905) was a prominent conservative pamphleteer and anti-imperialist leader. The most concise statement of his political beliefs is found in an 1871 essay, "Inefficiency of Economic Legislation," which declared, "it does not appear that any laws of this so-called 'protective' character have ever proven efficient in causing a more equitable division of labor or of product than might otherwise have been had. In the category of protective legislation attempted in this country may be included usury laws, eight and ten-hour laws for adults, and protective tariffs." Atkinson (1871), p. 1. For a full exposition of Atkinson's life and ideas, see Williamson (1934).

29. Tompkins (1970), pp. 207-8.

30. For a fuller summary of Atkinson's efforts to secure "a limited residence in Fort Warren" prison and the McKinley administration's response, see Tompkins (1970), pp. 206-8; Beisner (1985), pp. 98-101; Williamson (1934), pp. 227-29.

31. Godkin (1899a), p. 346.

32. Godkin (1899b), p. 388. For other editorial criticisms of the McKinley administration's handling of the Atkinson affair, see Faulkner (1959), p. 256.

33. Sumner (1901), pp. 10-11. For other conservative and anti-im-perialist attacks on McKinley's policy of censoring news dispatches and letters sent by soldiers stationed in the Philippines, see Parker (1904), pp. 13-14; Schurz (1913), pp. 87, 101-2; Tompkins (1970), pp. 201-2, 246 (citing articles and newspaper editorials).

34. Beisner (1985), pp. 9-10 (noting the ages of the anti-imperialists in 1898), 17; Fine (1956), pp. 373-78; Hofstadter (1955b), p. 203.

35. Burgess (1923), pp. 42-54 (arguing that the income tax was the greatest threat to individual liberty passed between 1898 and 1914), 64-85 (arguing that the Espionage Act was the greatest threat to individual liberty passed between 1914 and 1918).

36. Several weeks before the first Nation editorial appeared attacking censorship legislation that journal charged the New Republic with believing "that an ounce of fresh experiment is worth at least a pound of experience, and that the day after tomorrow is better than a thousand yesterdays." Villard (1917a), p. 410. During the Wilson administration, the Nation opposed the Clayton Act, the Federal Trade Commission, federal child labor laws, and the nomination of Brandeis to the Supreme Court. For examples of the Nation's prewar conservatism, see Villard (1912); Villard (1916). See generally Grimes (1953), pp. 66-70. The Nation did take a sharp turn to the political left after the war. See Grimes (1953), pp. 93-94 (claiming that 1919 was the crucial year in the transformation of the Nation's editorial policy); Wreszin (1965), pp. 15, 26-27, 30; Radosh (1975), pp. 67-71.

37. See chapter 3.

38. Villard (1917b), p. 482. See Villard (1917c) (endorsing a directed verdict in a sedition case because the defendant did not advocate illegal conduct); Villard (1917d) (endorsing Judge Hand's opinion in Masses Publishing Company v. Patten, 244 F. 535 [S.D.N.Y. 1917]); Vil-lard (1917e) (opposing the Espionage Act of 1917); Villard (1918a) (opposing the Sedition Act of 1918); Villard (1918b) (attacking the conduct and verdict of the Abrams trial).

39. See Burgess (1923), pp. x-xi, 23-26, 64-85; Cooley (1878), pp. 518-73. Scholars who have studied Cooley's career claim that he was more interested in the liberty of speech than the liberty of contract. Jones (1967), p. 765; Hyman and Wiecek (1982), pp. 354-56.

40. Murphy (1979), p. 50 (until World War I political controversy did not lead to "sufficient demands for public attention to civil liberties questions to involve any substantial number of people in a serious consideration of civil liberties issues"); Murphy (1972), pp. 13-14, 18; Chafee (1941), p. 507; Goldstein (1978), pp. 68-69; Dowell (1939), pp. 13-14, 21; Keller (1977), p. 519.

41. See Goldstein (1978), pp. 23-60, 68-69; Whipple (1927), pp. 210-20; Chafee (1941), p. 507; urphy (1972), pp. 16-17.

42. 158 U.S. 564 (1895).

43. Darrow (1895), pp. 64, 94-95.

44. James Pickering's defense of the right to speak on public property in Davis v. Massachusetts, 167 U.S. 43 (1897) was devoted to these claims. Pickering (1897), pp. 30-43, 47-61. Those state courts that upheld a right of access to public property also relied on these claims. For example, the Illinois Supreme Court declared unconstitutional an Illinois statute that required street demonstrations be licensed because "it merely leaves it to the discretion or caprice of the superintendent of police to imperatively prescribe who shall be permitted to gather together in such processions, and who shall not." City of Chicago v. Trotter, 136 Ill. 430, 433 (1891). See In re Gribben, 47 P. 2d 1074, 1077 (Okla. 1897) (ordinance violated traditional uses of public property); In re Garrabad, 54 N.W. 1104, 1107-8 (Wis. 1893) (ordinance was arbitrary and violated traditional uses of public property); Anderson v. City of Wellington, 40 Kan. 173, 179 (1888) (ordinance violated traditional uses of public property); Frazee's Case, 42 N.W. 72, 76 (Mich. 1886) (same); In re Flaherty, 38 P. 981, 984-86 (Cal. 1895) (Harrison, J., dissenting) (ordinance was arbitrary); Rich v. City of Naperville, 42 Ill. App. 222, 223-224 (1891) (ordinance was arbitrary and violated traditional uses of public property). Municipal ordinances were sometimes attacked on the ground that the municipality had no authority under state law to so regulate public property. See Anderson v. City of Wellington, at 173; Pickering (1897), pp. 23-28. See chapter 1, nn. 52-58 (noting that similar arguments were used to limit state regulatory power).

At times, courts used language that seemed to indicate judicial awareness that free-speech issues were at stake. One court declared, "Ever since the landing of the Pilgrims from the Mayflower the right to assemble and worship according to the dictates of one's conscience, and the right to parade in a peaceful manner and for the lawful purpose, have been fostered and regarded as among the fundamental rights of a free people." Rich v. City of Naperville, at 222, 223-24. Nevertheless, while the Court may have thought that political speech was a particularly good use of the streets, the actual holding of the case was that municipalities could not forbid any traditional use of public property. Illinois courts also held that citizens had a right to picnic and dance on public land. Village of Des Plaines v. Boyer, 123 Ill. 348 (1888). Furthermore, in support of the right to speak in the street, several courts and the Pickering brief relied heavily on City of Baltimore v. Radecke, 49 Md. 217 (1878). See Garrabad, at 1107; Flaherty, at 985 (Harrison, J., dissenting); Pickering (1897), at 4, 6, 58. That case concerned the right of city officials to restrict the use of a steam engine in the center of town.

45. Tiedeman (1894), pp. 268-69. See Cooley (1878), p. 289, n. 4. See also Henry Black (1895), p. 324; Dillon (1881), p. 657, n. 4 ("making a speech in a public street is not a nuisance 'per se' ") (John F. Dillon's treatise Commentaries on the Law of Municipal Corporations was a leading authority for the proposition that state regulations could be made only for a limited number of purposes). See Jacobs (1954), p. 121.

The leading nineteenth-century opponent of the right to make speeches on public property was Judge Oliver Wendell Holmes, Jr. In Commonwealth v. Davis, 162 Mass. 510 (1895), Holmes declared that persons had no more right to speak on public property than they had to speak on another person's private property. The Supreme Court endorsed this analysis in Davis v. Massachusetts. Tiedeman cited the holding of Davis in his analysis of free speech in a later edition of his work; however, he never integrated that decision into his more general analysis of constitutional free-speech rights. See Tiedeman (1900), p. 231.

46. Sutherland (1917), p. 198; Spencer (1896), pp. 284-96. See Sumner (1982), p. 85.

47. Paul (1960), p. 65.

48. Burgess (1895), p. 422. See Guthrie (1898), p. 49 ("the perpetuity of our institutions . . . depend[s] . . . upon the power given the judiciary to declare null and void all legislation that is clearly repugnant to the supreme law of the land"); Judson (1913), pp. 47, 94; Paul (1960), p. 27 (quoting Tiedeman), pp. 229-30; Sumner (1982), p. 95; W. Taft (1920), pp. 19-20; Skowronek (1982), p. 152 (quoting Brewer); American Bar Association (1918), pp. 403-4; Parrington (1930), p. 166 (quoting E. L. Godkin, 119).

49. Tiedeman (1886), p. vii; Shumate (1887), p. 106; Sumner (1982), p. 28. For other expressions of conservative fears of popular democracy, see Tucker (1899a), p. 82 ("the democratic patriarcha must, in order to retain its power, band the multitude in its support by profuse and extravagant largess"); Spencer (1896), p. 298 ("the authority of a popularly-chosen body is no more to be regarded as an unlimited authority than the authority of a monarch"). For conservative discussions of the proper role of attorneys, see Guthrie (1898), p. 32; Burgess (1890b), p. 365.

50. Cooley (1878), p. iii; Tiedeman (1886), p. vii. For more general discussions of the rise and influence of these treatises after the Civil War, see Hyman and Wiecek (1982), pp. 341, 511; Keller (1977), pp. 344-45; Jacobs (1954); Twiss (1962); Paul (1960).

51. Cooley (1878), pp. 209-10. See Tiedeman (1886), p. 604; Tucker (1899a), PP. 353-54; Burgess (1890a), p. 215; Burgess (1923), p. 6.

52. United States v. E. C. Knight Co., 156 U.S. 1 (1895). See McCurdy (1979). For other cases in which the Court held that federal regulations exceeded the scope of the interstate commerce clause, see Carter v. Carter Coal Co.; United States v. Butler, 297 U.S. 1 (1936); Hammer v. Dagenhart, 247 U.S. 251 (1918).

53. Jefferson (1975), p. 282. See Madison (1973), pp. 301-28. For a discussion of the eighteenth-century origins of this claim, see Levy (1985), P. 304-8.

54. Ex parte Jackson, 96 U.S. 727, 735 (1877). See Cooley (1878), p. 535 (noting that federal courts had no common law jurisdiction over sedition or libel).

55. Burgess (1923), pp. 65-68.

56. Ibid.

57. Ibid., pp. 65, 70, 79-80.

58. See chapter 1, n. 41 and accompanying text.

59. Cooley (1878), p. 536.

60. Cooley (1880), p. 87; Tucker (1899b), pp. 595-97. See Tiede-man (1886), pp. 631-32; Henry Black (1895), pp. 197-202.

61.      Cooley (1878), pp. 209-10. See sources cited in chapter 1, n. 52

62. Barron v. Baltimore, 32 U.S. 243, 249 (1833).

63. See Pomeroy (1870), p. 151; Burgess (1915), pp. 293-3o2; Burgess (1886), pp. 18-23.

64. John Norton Pomeroy (1828-1885) was a professor of law at the University of New York and the University of California. He wrote a number of influential legal treatises and was generally considered the foremost authority of his day on equity.

65. Pomeroy (1870), p. 151; Slaughter-House Cases, 16 Wall 36, 96 (1873) (Field, J., dissenting); Slaughter-House Cases, at UT-18 (Bradley, J., dissenting).

66. Campbell (1873), p. 12.

67. Pomeroy (1870), pp. 145-51; Burgess (1890a), p. 224. See Burgess (1902), p. 70 ("real civil liberty is always national"); Burgess (1895), pp. 409-10; Burgess (1890a), pp. 184-85; Burgess (1915), pp. 293-302; Burgess (1934), pp. 294-311; Burgess (1886), pp. 18-23.

68. Spies v. Illinois, 123 U.S. 131, 150-52 (1887). Tucker's treatise on constitutional law, published ten years later, stated that the privileges and immunities clause did not incorporate the Bill of Rights. Tucker (1899b), P. 854. However, as his private conversations demonstrate, his argument in Spies better represented his interpretation of the Fourteenth Amendment. See Curtis (1986), p. 186.

69. William D. Guthrie (1859-1935) was one of the most successful conservative lawyers of his time, a member of the Columbia Law School faculty, and the author of Lectures on the Fourteenth Article of Amendment to the Constitution of the United States, an influential legal treatise. Guthrie was active in the fight against child labor laws and was counsel to business interests in such cases as Champion v. Ames, 188 U.S. 321 (1903) (power of Congress to regulate interstate lotteries), Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429 and 158 U.S. 601 (1895) (the constitutionality of the income tax), and Northern Securities Co. v. United States, 193 U.S. 197 (1904) (constitutionality and interpretation of antitrust laws).

70. Guthrie (1898), pp. 62-65; see also pp. 21-23. For other conservative authors who claimed that the privileges and immunities clause forbade state violations of the liberties guaranteed by the Bill of Rights, see Judson (1891), p. 880; Watson (1910), p. 1612. See generally Connor (1920), p. 230 (citing various sources who endorsed John Campbell's interpretation of that clause). See generally Curtis (1986), chapter 7.

71. Twining v. New Jersey, 211 U.S. 78, 122 (1908) (Harlan, J., dissenting); Maxwell v. Dow, 17 6 U.S. 585, 606-8 (1900) (Harlan, J., dissenting); O'Neil v. Vermont, 144 U.S. 277, 370 (1888) (Harlan, J., dissenting).

72. O'Neil v. Vermont, at 323 (1892); Patterson v. Colorado, 205 U.S. 454, 465-66 (1907) (Brewer, J., dissenting).

73. Henry Black (1895), pp. 481,464.

74. 92 U.S. 549, 551-52 (1875). Rabban has argued that in Spies v. Illinois the Supreme Court dismissed a free-speech claim because it believed that no federal question was presented. This interpretation, however, is erroneous. The Spies decision held that the factual basis of the free-speech claim either did not appear on the record of the case or was not properly presented to the state court. Thus, the Court noted, but did not adjudicate, any of petitioner's free-speech claims. Spies, at 166-82.

75. See Munn v. Illinois, 94 U.S. 113 (1877).

76. See Cooley (1873), pp. 658-59; Tiedeman (1886), p. 15; Henry Black (1895), p. 268; Brannon (1901), pp. 63-66.

77. Cooley (1878), p. 441. See Willoughby (1910), p. 868; Watson (1910), p. 1451; Henry Black (1895), p. 418 ("That which the provision is intended to perpetuate is not remedies or forms of procedure, but the established principles of private right and distributive justice"). See also Jacobs (1954), pp. 32, 39-58 (noting the influence of Cooley's in-terpretation of the due process clause).

78. Cooley (1873), p. 668.

79. Patterson v. Colorado, at 454, 465 (Harlan, J., dissenting).

80. Cooley (1873), pp. 668-69, and n. 1. To the best of my knowledge, this is the first time that a prominent American legal scholar endorsed John Stuart Mill's defense of free speech.

81. Tiedeman (1886), p. 189; Burgess (1890a), pp. 86-87; Minor (1882), p. 80; Brannon (1901), p. 114. John Minor (1813-1895) was a pro-lessor at the University of Virginia and is best known for his influence on Justice James McReynolds. Henry Brannon (1837-1914) was a justice on the Supreme Court of West Virginia, where he influenced the rise of substantive due process.

82. 165 U.S. 578 (1897).

83. Lochner v. Hew York, at 45, 53, 61.

84. Downes v. Bidwell, 182 U.S. 244, 296, 298 (1901) (White, J., concurring). The precise issue of free-speech rights in the territories was never adjudicated because Congress had by statute granted that right to the inhabitants of the territories. See Kepner v. United States, 195 U.S. 100, 123-24 (1903).

85. Downes, at 282-83 (opinion of Brown, J.). See Rassmussen v. United States, 197 U.S. 516, 531 (1905); Hawaii v. Mankichi, 190 U.S. 197, 217-18 (1903).

86. Downes, at 359 (Fuller, C. J., dissenting).

87. Davis v. Massachusetts, at 43; Patterson v. Colorado, at 454; Mutual Film Corp. v. Industrial Commission of Ohio, 236 U.S. 230 (1915); Fox v. Washington, 236 U.S. 273 (1915); Gilbert v. Minnesota, 254 U.S. 325 (1920).

88. See Twining v. New Jersey, at 78 (the Fourteenth Amendment did not incorporate the Fifth Amendment right against self-incrimination); Maxwell v. Dow, 176 U.S. 581 (1900) (the Fourteenth Amendment did not incorporate the Sixth Amendment right to a twelve-person jury; Maxwell also affirmed earlier cases holding that the Fourteenth Amendment did not incorporate rights stated in the Second, Fifth, Seventh, and Eighth Amendments); West v. Louisiana, 194 U.S. 258 (1904) (the Fourteenth Amendment did not incorporate the Sixth Amendment right to confront witnesses). For a comprehensive citation to turn-of-the-century cases in which the Supreme Court failed to incorporate provisions of the Bill of Rights, see Frankfurter (1965).

89. Chicago, Burlington and Quincy Railroad Co. v. Chicago, at 226

90. In Patterson v. Colorado the state did submit a lengthy argument against incorporation. Dickson (1907), pp. 59-64. Other states briefs either only discussed the merits of the free-speech argument (Knowlton and Travis [1897]; Tanner and Remann [1915]) or baldly cited a few cases without any argument as to their meaning. Sherman, Wetherbee, and Dawes (1925), p. 7; Hilton and Markham (1920), p. 25; Dawson (1915), p. 45. The main brief for the state of New York in Git-low v. New York, 268 U.S. 652 (1925), virtually conceded the issue. Sherman and Benton (1925), p. 9.

91. Gitlow, at 666 and n. 9 (citing these earlier cases). There is dic-turn in Prudential Ins. Co. v. Cheek, 259 U.S. 530 (1922) stating that the liberties protected by the Fourteenth Amendment did not include expression rights. However, the Court rejected this "incidental statement" at the next opportunity. Gitlow, at 666. Furthermore, the Prudential Ins. Co. case dealt with commercial speech. The Court had earlier held that only speech associated with educational or political purposes (i.e., speech that would help persons develop their faculties) was within the ambit of constitutional protection. Mutual Film Corp., at 230, 244-45.

92. 236 U.S. 1 (1915).

93. Gitlow, at 666, n. 9.

94. Grosjean v. American Press Co., at 233, 244.

95. Fox v. Washington, 236 U.S. 273, 276-77 (1915).

96. Cooley (1878), pp. 527-28. See Watson (1910), pp. 1402-3. See also Murphy (1979), p. 195 (interpreting Cooley as advocating those standards that were accepted when the Constitution was passed).

97. Henry Black (1895), p. 65. See Willoughby (1910), pp. 28-35; Cuthrie (1898), pp. 38-39; Tucker (1899a), p. 351; Pomeroy (1870), p.94; Tiedeman (1886), pp. 12-13; Judson (1913), p. 60; Cooley (1878), p. 212.

98. Levy (1985); Blackstone (1773b), p. 151.

99. The other treatise writers discussed in the first part of this section did not discuss specific free-speech standards.

100. By comparison, the leading intellectual contemporaries of late nineteenth-century conservatives took positions that were either explicitly or implicitly hostile to broad constitutional protections for free speech. For example, the prewar opinions of Oliver Wendell Holmes, Jr., argued that the constitutional guarantee of free speech only limited prepublication sanctions and that plaintiffs in libel suits did not have to prove actual malice in addition to falsehood. See Patterson v. Colorado, at 454; Butt v. Advertiser Newspaper Co., 154 Mass 238, 242 (1891) (Holmes, J.). Holmes acknowledged that at the time of Patterson he believed that no prior restraint was the rule of the First Amendment. See Bogen (1982), p. 100 (quoting Oliver Wendell Holmes, Jr., to Zechariah Chafee, Jr. [June 12, 1922]). For discussions of Holmes's early free-speech decisions, see Bogen (1982), pp. 122-31; Rogat and O'Fallon (1984), pp. 1352-60. Holmes was, of course, an early opponent of late nineteenth-century jurisprudence. See especially Holmes (1920), pp. 167-202; Lochner v. New York, at 45, 74-76 (Holmes, J., dissenting).

James Bradley Thayer, another leading opponent of substantive due process, did not discuss free speech in his writings. However, his claim that courts should only strike down statutes whose unconstitutionality was "not open to rational question" was inconsistent with significant judicial protection of free-speech rights. Thayer (1893), pp. 143-52, especially p. 144. See Shattuck (1891) (prominent article claiming that neither the right to labor nor the right to free speech was protected by the due process clause of the Fourteenth Amendment). See also chapter 3 (claiming that progressives were responsible for increased interest in governmental regulation of speech in the early twentieth century); Rabban (1983), pp. 1215-16 (claiming that postwar progressive civil libertarians had little interest in free speech before the war); D. Johnson (1963), pp. 194-98.

101. Rabban (1985); D. Anderson (1986); D. Anderson (1983).

102. Cooley (1878), p. 527.

103. Henry Black (1895), p. 473; Tiedeman (1886), pp. 191-92.

104. Tucker (1899b), p. 670 (discussing Hallam [1847], p. 164).

105. Henry Black (1895), pp. 474-75.

106. Cooley (1878), p. 537.

107. Ibid., p. 536. See Tiedeman (1886), p. 192 (endorsing Cooley). In The Principles of Constitutional Law, Cooley claimed that political dissenters had the right "to bring the people to the point of consenting to any change short of the abolition of republican institutions." Cooley (1880), pp. 277-78.Although this standard would later be used to limit the scope of legitimate political dissent, Cooley never discussed what such advocacy might mean and indicated that efforts to forbid "condemnation of the government or Constitution" were probably beyond the pale of legislative authority. Cooley (1880), p. 277 . Constitutional Limitations, which is essentially the unabridged edition of The Principles of Constitutional Law, never discussed this exception and endorsed an English case that held criticisms of democracy were within the right of free speech when made by persons who believed them true. Cooley (1878), pp. 538-41, n. 1 (endorsing Respublica v. Dennie, 4 Yeates 267 [1805]).

108. Henry Black (1910), p. 652.

109. . Ibid., pp. 657-58; Tiedeman (1886), pp. 192-93. See H. Adams (1886); H. Brown (1900), p. 335 (arguing that Communists had the right to speak as long as they "did not directly incite to criminal acts").

110. Salomon et al. (1887), p. 21. In Turner v. Williams, Justice Brewer suggested that the federal government had no constitutional power to deport alien anarchists who rejected violence as a means of achieving their political ends. Turner v. Williams, 194 U.S. 279, 296 (1904) (Brewer, J., concurring).

111. Curtis (1986), p. 186. Tucker was one of many prominent conservative jurists who presented free-speech claims to the Supreme Court. Tucker was brought into the Spies case by Roger A. Pryor, a Wall Street attorney who helped defend the sugar monopoly against prosecution under the Sherman Anti-Trust Act in United States v. E. C. Knight Co. See Avrich (1984), p. 334. The main attorney for the E. C. Knight Company was John O. Johnson, who later sought to persuade the Court in Twining v. New Jersey that the Fourteenth Amendment incorporated all the provisions of the Bill of Rights. Johnson et al. (1908), p. 51. For a fuller discussion of Johnson's legal activities, which included constitutional attacks on virtually every piece of commercial regulation passed by the federal government at the turn of the century, see Winkelman (1942). Alton B. Parker, the Cleveland Democrat who ran for president in 1904, was the first attorney who asked the Supreme Court to hold that a labor injunction violated the constitutional right of free speech. See Gompers v. Bucks Stove and Range Company, 221 U.S. 418, 430 (1911) (argument of the petitioner). While a judge in New York, Parker voted to uphold the New York maximum-hour law later invalidated by the Supreme Court in Lochner v. New York, but he endorsed the principles of economic substantive due process in his scholarly writings. See Parker (1914), pp. 631-32, 635-40. Parker became involved in the Gompers litigation as a result of his work with the National Civic Federation, a group of leading conservative industrialists who were seeking to compromise with less radical labor unions like the American Federation of Labor. Weinstein (1968), p. 16. Guthrie successfully argued Pierce v. Society of Sisters, 268 U.S. 510 (1925), before the Supreme Court. Although his brief primarily asserted that an Oregon law closing private schools violated the freedoms of contract and religion, Guthrie also claimed that the statute violated free-speech rights and quoted Justice Holmes's statement that the "ultimate good desired is best reached by free trade in ideas" in support of that point. Guthrie and Hershkopf (1925), p. 82 (quoting Abrams v. United States, 250 U.S. 616, 630 [1919] [Holmes, J., dissenting]).

112. Burgess (1923), pp. 75 -76 In 1890, Burgess claimed that statutes punishing criticisms of the government or comments about the public character of state officials were examples of an "unusual law of libel and slander." Burgess (189oa), p. 192.

113. Burgess (1923), pp. 80-83.

114. Gutfeld (1968), pp. 165-66. See In re Conciliation Commissioner for Sanders County, Mont., 5 F. Supp. 131 (D. Mont. 1933) (describing the New Deal as "government in defiance of the Constitution").

115. United States v. Hall, 248 F. 150, 152-53 (D. Mont. 1918). Judge Bourquin also delivered an important opinion that restricted federal power to deport alien radicals during the red scare. In Ex parte Jackson, Bourquin freed an alien dissident who was being deported on the basis of illegally seized evidence. Referring to the broader violations of constitutional rights that he saw taking place in American society, Bourquin stated, "the inalienable rights of personal security and safety . . . are limited to no man, race or nation, to no time, place, or occasion, but belong to man, always, everywhere, and in all circumstances." Ex parte Jackson, at 110, 113.

116. Most nineteenth-century state constitutions asserted that truth (for good motives and good ends) was a complete defense. See Cooley (1878), pp. 518-22, n. 1. Conservative treatises rarely paid any attention to the limitations that good motives and good ends might have placed on the scope of constitutional free-speech protection; similarly, there seems to be no case law on what constituted good motives and good ends. Cooley's writings suggest that the duty to speak on public affairs created an irrebuttable presumption that true political statements were published for good motives and good ends. This qualification on truthful statements may have concerned revelations about private affairs and conduct. See chapter 1, n. 128.

117. For a good summary of the cases, see the addendum to Haig (1891). See also Haig (1891), p. 565 (noting that the cases are "hopelessly irreconcilable"). I have not determined whether the more con-servative state benches took the most protective speech positions.

118. 376 U.S. 254, 279-80 (1964).

119. Cooley (1878), p. 528. See Atkinson v. Detroit Free Press, 46 Mich. 341, 375-76 (1881) (Cooley, J., dissenting).

120. Cooley (1878), p. 533.

121. Ibid., pp. 540-41; Atkinson, at 341, 377 (Cooley, J., dissenting). See Miner v. The Detroit Post and Tribune Company, 49 Mich. 358 (1883).

122. Cooley (1878), pp. 540-41.

123. Atkinson, at 379 (Cooley, J., dissenting). See Miner v. The Detroit Post and Tribune Company, at 358.

124. Atkinson, at 384 (Cooley, J., dissenting).

125. Wason v. Walter, 4 L.R. 73, 93-94 (Q.B. 1868).

126. Blackstone (1773a), p. 125; Blackstone (1773b), pp. 150-52.

127. Cooley (1878), p. 549. But see Tiedeman (1886), p. 51 (claiming that there was no constitutional right to discuss the private lives of public officials). This question was more recently left open by the Supreme Court in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).

128. Henry Black (1895), pp. 478-79,483; Tiedeman (1886), pp. 45, 50-51, 54; Brewer (1886), p. 364. See also H. Brown (1900), p. 330 (claiming that some false speech was protected by the Constitution).

129. Tucker (1899b), p. 670.

130. Godkin (1890), p. 63.

131. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964).

132. Sullivan, at 270, 274 -77.

133. Sullivan, at 280.

134. Coleman v. MacLenan, 78 Kan. 711, 718 (1908).

135. Coleman, at 720, 733-36.

136. Sullivan, at 280, n. 20.

137. See chapter 5.

138. Chafee (1941), pp. 357-60.

139. Ibid., p. 13.

140. Associated Press v. National Labor Relations Board, 301 U.S. 103 (1937); DeJonge v. Oregon, 299 U.S. 242 (1937); Grosjean v. American Press Co., at 233; Fiske v. Kansas, 274 U.S. 380 (1927). Conservative justices also voted to strike down state laws that limited the subjects school children could be taught or the forums in which they could be taught. See Farrington v. Tokushige, 273 U.S. 284 (1927); Pierce v. Society of Sisters, at 510; Meyer v. Nebraska, 262 U.S. 390 (1923) (Suther-land, dissenting).

141. Stromberg v. California, 283 U.S. 359 (1931) (Justices Suther-land and Van Devanter supported the free-speech claim; Justices Butler and McReynolds did not).

142. Herndon v. Lowry, 301 U.S. 242 (1937); Near v. Minnesota, 283 U.S. 697 (1931); Whitney v. California, 274 U.S. 357 (1927); Gitlow, at 652.

143. See Jacobs (1954), P. 224; R. Brown (1927), p. 945, n. 11 (citing statistics).

144. Associated Press, at 135 (Sutherland, J., dissenting).

145. Sutherland (1919), pp. 20-21.

146. Ibid., pp. 96-98.

147. Ibid., pp. 70-72. See H. Taft (1921), pp. 719-20; Wallace (1920), PP. 394-95 (I was unable to ascertain M. G. Wallace's general political convictions).

148. Sutherland (1919), pp. 98-99, 101-4, 111-15. See Block v. Hirsh, 256 U.S. 135 (1921); Wilson v. New, 243 U.S. 332 (1917). See also Siegan (1980), p. 168; Murphy (1979), p. 183; Paul (1960), pp. 228-29. For a fuller discussion of Sutherland's attitude toward the role of the Supreme Court in foreign affairs, see Paschal (1951), pp. 221-29. See also United States v. Curtiss-Wright Export Company, 299 U.S. 304 (1936) (Congress could grant the executive more discretionary power over foreign affairs than over domestic matters).

149. Gitlow, at 668 (quoting Toledo Newspaper Co. v. United States, 247 U.S. 402 [1917]).

150. Garrett endorsed Tiedeman's claim that the fundamental rule of constitutional interpretation was alternm non laedere. Garrett (1919), PP. 73-74.

151. Ibid., pp. 71-72, 75.

152. Ibid., p. 71.

153. Ibid.

154. Page (1919), pp. 537-39. For a discussion of the general tone of bar association statements on free speech, see Lawrence (1974), P. 71. Progressives, as well as conservatives, tended to identify radicalism and aliens. See Wigmore (1920), p. 543. See also Preston (1963); Higham (1978), pp. 194-263. This matter is discussed in chapter 3.

For contemporary conservative claims that the First Amendment does not protect the advocacy of "anti-American" doctrines, see Emerson (1970), pp. 48-49, n. 4 (citing sources); Jaffa (1970), pp. 221-38.

155. Stromberg v. California, at 359, 376 (Butler, J., dissenting).

156. Gilbert, at 333. For similar remarks, see Pierce, at 251; Schaefer v. United States, 251 U.S. 466, 481 (1920).

157. The Court permitted prosecutors to place President Wilson's "war message" into evidence in sedition cases and allowed federal officials to testify about the laudable purposes behind the war policies of the United States. Pierce, at 251; Carroll (1918), p. 645. In Pierce, Justice Pitney declared a prediction that the draft would become mandatory to be false, even though the prediction had been verified by the time the case came to the Supreme Court. Pierce, at 264 (Brandeis, J., dissenting).

158. Pierce, at 245.

159. Herndon, at 276 (Van Devanter, J., dissenting) ("for all know that such measures could not be effected otherwise").

160. Tiedeman (1886), pp. 192-93.

161. Herndon, at 276 (Van Devanter, J., dissenting).

162. See Fiske, at 384-85; DeJonge, at 358-62; Stromberg, at 365-67.

163. Chafee's examples of conservative articles on free speech were written by Edward Corwin, Day Kimball, and J. P. Hall. Chafee (1941), pp. 508-9. Corwin was one of the most influential opponents of conservative jurisprudence. See chapter 3. Kimball was a Frankfurter protégé (he clerked for Holmes, and Frankfurter supplied all of Holmes's clerks) (Holmes and Laski [1963a], p. 226). Hall, the dean of the University of Chicago Law School during the first quarter of the twentieth century, expressed his hope that Lochner and other such cases "will be abandoned by the courts." Hall (1917), p. 146. The only other articles Chafee cited that defended the constitutionality of wartime restrictions on political dissent were written by Herbert Goodrich and John H. Wigmore. Chafee (1941), pp. 108-9, n. 3. Goodrich claimed that Abrams was right because Lochner was wrong. Goodrich (1921), p. 500. Wigmore was an admirer of Justice Holmes, and the Abrams decision was one of only two times that the two ever disagreed on the correct outcome in a case. See Roalfe (1977), especially pp. 148-49. The progressive origins of the bad tendency test are discussed at length in chapter 3.

The only Supreme Court opinion Chafee analyzed at length was Justice Clarke's majority opinion in Abrams. Chafee (1941), pp. 128-36. Not only did Clarke believe that statutes should be sustained whenever the legislation might appear to be constitutional to a rational person, but he was also prepared never "to hold a statute unconstitutional whenever several of the Justices conclude that it [was] val-id-by conceding that two or more being of such an opinion in any case must necessarily raise a 'rational doubt.' "Clarke (1923), p. 692.

1. See Preston (1963), pp. 43-55; Drinnon (1961), pp. 121-42.

2. For discussions of legislative activity during the progressive era, see Whipple (1927), p. 263; Goldstein (1978), pp. 68-69; Preston (1963), pp. 21-34; Chafee (1941), pp. 506-8; Murphy (1972), p. 18.

3. See Rabban (1981).

4. See Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 436-39 (1911) (discussing the free-speech issues raised by a labor injunction); Shepard (1915); Chamberlain (1915) (treating the right to speak on public property as raising First Amendment concerns); Woods (1915); Brooks (1915). Progressive thinkers also believed that free-speech issues were raised whenever private force was used to curtail political dissent. See Whipple (1927), pp. 326-27 (citing the 1915 report of the Federal Industrial Relations Commission).

5. See Rabban (1987); Whipple (1927), p. 328 ("the third sign of the times was the appearance of pure libertarians—men and women who defended the principles of liberty for use by all people, yet without any special axe to grind themselves").

6. Note (1916), p. 170. For citations to this prewar literature, see Rabban (1981), pp. 559-60 and n. 235.

7. Patterson v. Colorado, 205 U.S. 454 (1907).

8. For summaries of the political status of free speech from 1900 to 1915, see Preston (1963), pp. 11-87; Higham (1978), pp. 106-93.

9. Emma Goldman (1982), pp. 68, 50, 49.

10.      Sumner (1982), p. 98.

11. Emma Goldman (1982), pp. 64, 68, 55, 58; see especially pp. 150-57 (noting the connections between the freedom of speech and the freedom of intimate relations). See also Solomon (1987), p. 46 ("Goldman's anarchism was essentially libertarianism"); Shulman (1982), P. 43.

12. Emma Goldman (1982), pp. 49-50, 68.

13. Ibid., p. 55. For an account of Goldman's travails on behalf of expression rights, see Drinnon (1961), pp. 121-42.

14. Compare Emma Goldman (1932), p. 348, with Rabban (1987), p.5.

15. For a general history of the Free Speech League, see Rabban (1987).

16. For discussions of the activities of Weinberg and Roe on behalf of free speech, see Polenberg (1986), pp. 75-81; Rabban (1987), pp. 9-10, 13.

17. Drinnon (1961), p. 140 (quoting Baldwin); Baldwin (1961a), pp. 265, 138. See Lamson (1976), pp. 58-65.

18. See Schroeder (1916), p. 8 (describing himself as an anarchist, but in the sense that Ralph Waldo Emerson, Thomas Jefferson, Herbert Spencer, and John Stuart Mill might also be anarchists); Emma Goldman (1932), p. 335 (describing Schroeder as a friend).

19. Schroeder (1910), p. 22; Schroeder (1911), p. 8. For Schroeder's role in the Free Speech League, see Rabban (1987), pp. 5-9.

20. Schroeder (1942), p. 14; Murphy (1972), p. 31 (quoting Schroeder's letters to Roger Baldwin). See Schroeder (1942), p. 11 (claiming that both the liberals and the conservatives of his day suffered from "feudal mindedness"); Rabban (1987), pp. 13-14. See generally Murphy (1972), pp. 20, 31-32; Whipple (1927), p. 327.

21. Schroeder (1942), p. 9. See Schroeder (1916), pp. 194-95.

22. Schroeder (1942), p. 9. See Schroeder (1916), pp. 73-74.

23. Schroeder (1942), pp. 7, 16-18; Schroeder (1916), pp. 194-95. Although Goldman also believed that "broad and wide education" would help "bring about social reconstruction," she maintained that "the most powerful weapon" in that struggle was "the conscious, intelligent, organized, economic protest of the masses through direct action and the general strike." Emma Goldman (1982), p. 60.

24. Schroeder (1911), p. 151; see also p. 13; Schroeder (1910), p. 22; Schroeder (1916), pp. 33-34.

25. Schroeder (1916), pp. 100, 105, 107.

26. Ibid., p. 94.

27. Schroeder (1911), pp. 350-51. See Schroeder (1916), pp. 39-42, 113.

28. Schroeder (1911), p. 153.

29. Schroeder (1916), p. 43 (quoting Cooper, "A Treatise on the Law of Libel and the Liberty of the Press," p. xxi); see also p. 3. The Free Speech League republished and circulated James Mill's similar defense of free speech; see Mill (1913).

30. Schroeder (1911), p. 212.

31. Schroeder (1916), pp. 80-81, 2. See Schroeder (1911), pp. 25, 161, 204·

32. Schroeder (1916), pp. 44.

33. Schroeder (1908), pp. 373. See Schroeder (1911), p. 32.

34. Schroeder (1911), pp. 142, 212; see also pp. 33-41. Schroeder (116), pp. 82-115.

35. Schroeder (1916), p. 82.

36. Ibid., p. 83. See Schroeder (1911), p. 148 (only if the wording of the text is ambiguous does historical evidence of the framers' intentions become relevant).

37. Schroeder (1911), p. 210.

38. Schroeder (1916), p. 86; see Schroeder (1911), p. 212.

39. Schroeder (1911), pp. 222, 210-30.

40. Schroeder (1916), pp. 90-91, 87. Of course, one had to examine historical sources when determining what the Constitution as a whole meant; see also pp. 91-111.

41. Schroeder (1916), p. 105.

42. Schroeder (1911), pp. 236-37; see also p. 150; Schroeder (1916), pp. 2, 91-101.

43. Schroeder (1916), pp. 113, 94.

44. Ibid., p. 112.

45. Ibid., p. 114.

46. Schroeder (1911), p. 11.

47. Harry Weinberger did maintain, however, that the liberty not to be vaccinated against smallpox was another aspect of the individual's Fourteenth Amendment rights. See Polenberg (1987), p. 78.

48. Schroeder (1916), pp. 13, 94; see also p. 80.

49. Kraines (1974), pp. 10-11. In the years following the publication of The Police Power (1904), Freund became an active participant in the movement for a sociological jurisprudence. See Brandeis (1934), p. 316 (claiming that Pound and Freund were the founders of sociologi-cai jurisprudence).

50. E. Freund (1904), p. 539.

51. Ibid., pp. 475-77.

52. Ibid., pp. 484-85, 531, 719-20.

53. E. Freund (1921), p. 345. See E. Freund (1904), p. 510. In 1904, Freund endorsed the traditional claim that constitutional history was the primary source of legitimate constitutional standards. E. Freund (1904), p. 504. He added that practice over time could substitute as a source for constitutional interpretation when the intent of the framers was unclear. See E. Freund (1973), p. 240.

54. E. Freund (1904), pp. 509-10. See E. Freund (1973), p. 242 ("a country can ill spare the men who when waves of militant nationalism run high do not lose the courage of their convictions"); E. Freund (1921), P. 345.

55. E. Freund (1904), p. 511.

56. E. Freund (1973), p. 239.

57. For example, although Alexander Meiklejohn claimed that the First Amendment provides absolute protection for political speech, he did not believe that the Constitution protects any other category of speech. Meiklejohn (1960), pp. 79-80.

58. See Schofield (1921), p. 528, n. 28. Chafee noted the existence of Schroeder's works but never discussed their merits. Chafee (1920), p. 378.

59. See chapter 3.

60. Dewey (1927), pp. 202-3; Dewey (1950), p. 128. See Dewey (1927), P. 34; Dewey (1935), p. 20; Dewey (1934), pp. 38-39. For Dewey's discussion of the logical and epistemological consequences of pragmatism, see Dewey (1950), pp. 77-130.

61. Dewey (1950), p. 128. See Dewey (1929b), p. 546; Dewey (1934), p. 71; Dewey (1927), p. 45. See generally Quandt (1970), pp. 110-11; Damico (1978), p. 24.

62. For a good discussion of pragmatism in the late nineteenth century, see J. Smith (1963), pp. 3-79.

63. Dewey (1935), p. 17; Dewey (1939), p. 87.

64. Dewey (1927), p. 25; see pp. 160-61; Dewey (1939), p. 21. See also Dewey (1927), p. 11; Damico (1978), pp. 30, 75.

65. Dewey (1927), p. 158.

66. Dewey (1934), p. 86. See Damico (1978), pp. l0-11; Quandt (1970), p. 121.

67. Dewey (1935), p. 24.

68. Dewey and Tufts (1913), p. 441

69. Dewey (1935), p. 66.

70. Dewey and Tufts (1913), p. 440.

71. Ibid., pp. 482-83, 474. See also Noble (1981), especially p. x ("On the surface progressivism was a rejection of nineteenth-century competitive individualism in favor of an ideal of community. But most American progressives defined that ideal community as so spontaneous and natural that the individual would not have to sacrifice any of his autonomy and independence through participation in group endeavor").

72. See M. White (1957), especially p. 6 ("Pragmatism, instrumentalism, institutionalism, economic determinism, and legal realism exhibit striking philosophical kinships. They are all suspicious of approaches which are excessively formal; they all protest their anxiety to come to grips with reality, their attachment to the moving and the vital in social life"); Wigdor (1974), PP. 209-13; Purcell (1973), pp. 3-113; Lustig (1982), pp. 109-226.

73. See Quandt (1970), p. 215, n. 1 (citing sources). See generally R. Smith (1985), p. 79; Thomas (1981), pp. 653-54. For a fuller discussion of the differences between Dewey and Croly, see chapter 3.

74. Croly (1965), pp. 278, 263; see also pp. 282, 288.

75. Ibid., pp. 81,178,190.

76. Pound (1908a), p. 609-10. See Wigdor (1974), p. 185 (quoting Pound). See also Commager (1950), p. 380; R. Smith (1985), p. 78; M. White (1957), p. 19.

77. Pound (1909), p. 463. See Pound (1910-11), p. 596; Pound (1908a), pp. 606-7, 622.

78. Pound (1908a), p. 611; see also p. 605. See Pound (1910-10), pp. 598, 140-41; Pound (1909), p. 463; Wigdor (1974), p. 162 (quoting Pound).

79. Wigdor (1974), p. 276 (quoting Pound); Pound (1908c), p. 393; Pound (1909), p. 457.

80. Pound (1915), p. 344; Pound (1910-11), p. 146.

81. Pound (1915), pp. 344, 356. See Pound (1954), PP. 33-34.

82. Pound (1915), p. 349. See Pound (1910-11) p. 143; Pound (1954), P. 44 ("compromises of conflicting human desires"). See also Wigdor (1974), p. 192; Commager (1950), p. 380.

83. Pound (1915), p. 347 (quoting Dewey and Tufts [1913], pp. 482-83). See Pound (1915), p. 349; Pound (1054), p. 37.

84. See, e.g., Pound (1915), p. 454-55.

85. Dewey (1935), p. 74; Pound (1910-11), pp. 146-47. See also Dewey (1935), p. 49; Pound (1910-11), pp. 161-62; Pound (1908a), p. 622.

86. Pound (1908a), p. 623.

87. Cardozo (1921), p. 65.

88. Pound (1908c), p. 384.

89. Pound (1909), pp. 469-70. See Pound (1908a), pp. 621-22. See also Wigdor (1974), PP. 176-77.

90. Pound (1908c), p. 406.

91. Pound (1909), p. 470. See Wigdor (1974), pp. 179-80.

92. Pound (1909), p. 457-58.

93. Pound (1908c), p. 383·

94. Pound (1909), p. 462. See Pound (1908a), pp. 615-16.

95. Pound (1909), pp. 457, 470; Pound (1908c), pp. 388, 384; Pound (1908a), p. 616.

96. Pound (1909), pp. 467, 469.

97. Pound (1908c), pp. 403, 405.

98. Pound (1915), p. 453.

99. Ibid.

100. Ibid., pp. 454-56. The two articles Pound wrote on specific free-speech issues supported legislative and judicial restrictions on expression. See Pound (1916), pp. 650-55 (Blackstone's rule of no prior restraint was an insufficient constitutional objection to an equitable decree restraining defamatory statements before publications); Pound (1908b) (endorsing restrictions on press coverage of trials). See Rosen-berg (1986), p. 215 (noting Pound's relatively illibertarian positions).

101. Pound (1915), p. 453. The social interest in peace was also advanced by protection for free speech because "the individual will fight for his beliefs."

102. Ibid., p. 454.

1. See Murphy (1979), p. 30; Donohue (1985), p. 128; Rabban (1981), p. 519.

2. The Espionage Act of 1917 declared:

Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with the intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States or shall willfully obstruct the recruiting or enlistment service of the United States to the injury of that service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.
(40 Stat. 219 [1917])

The Sedition Act of 1918 declared:

Whoever, when the United States is at war, . . . shall willfully make or convey false reports or false statements, or say or do anything except by way of bona fide and not disloyal advice to an investor or investors, with intent to obstruct the sale by the United States of bonds or other securities of the United States or the making of loans by or to the United States, . . . and whoever, when the United States is at war, shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of

the United States, or the uniform of the Army or Navy of the United States into contempt, scorn, contumely, or disrepute, or shall willfully utter, print, write, or publish any language intending to incite, provoke, or encourage resistance to the United States; or to promote the cause of its enemies, or shall willfully display the flag of any foreign enemy, or shall willfully by utterance, writing, printing, publication, or language spoken, urge, incite, or advocate any curtailment of production in this country of any thing or things, product or products, necessary or essential to the prosecution of the war in which the United States may be engaged, with intent by such curtailment to cripple or hinder the United States in the prosecution of the war, and whoever shall willfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated, and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.
(40 Stat. 553-54 [1918]).

3. For the full text of all federal speech restrictions passed during World War I, see Scheiber (1960), pp. 13-17.

4. See Scheiber (1960), p. 19; Dowell (1939); Chafee (1941), pp. 578-97. Harold Hyman argues that more than six thousand Americans were punished in some way for violating wartime sedition statutes; Hyman (1960), p. 268. For general discussions of state and federal repression in the years immediately after World War I, see Murray (1955); Murphy (1972), pp. 38-76; Goldstein (1978), pp. 137-91; Hilton (1951); Roche (1963a), pp. 50-75. In addition to official activity, federal and state government officials encouraged private groups, such as the American Protective League, which harassed political dissenters. See Jensen (1968); Hyman (1960), pp. 272-97.

5. See Whitney v. California, 274 U.S. 357 (1927); Gitlow v. New York, 268 U.S. 652 (1925); United States ex. rel Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407 (1921); Gilbert v. Minne-sota, 254 U.S. 325 (1920); Schaefer v. United States, 251 U.S. 466 (1920); Pierce v. United States, 252 U.S. 239 (1920); Abrams v. United States, 250 U.S. 616 (1919); Debs v. United States, 249 U.S. 211 (1919); Schenck v. United States, 249 U.S. 47 (1919).

6. Strictly speaking, progressivism was a prewar reform movement or collection of movements. At some point between 1920 and 1940, persons who believed that the government needed to continue building upon previous political and economic reforms began to call themselves and to be called liberals rather than progressives; this is not to say that all or even most progressives supported the New Deal. See Graham (1967). While the early civil libertarians discussed in chapter 3 supported these liberal reforms, I believe that persons such as John Dewey, Louis Brandeis, and Jane Addams are best described as progressives because they rejected many new intellectual trends of the 1920s and 1930s. For example, while Dewey, Addams, and Brandeis were proponents of sociological jurisprudence, they never became legal realists. See generally Purcell (1973), pp. 74-94 (noting the evolution of legal thought in the first third of the twentieth century); and pp. 42-43 (noting that Dewey objected to the ethical relativist strand of New Deal thought).

7. Wiebe (1967), pp. 287-88; Thomas (1981), p. 738. See Rosenberg (1986), p. 209; Rabban (1983), pp. 1213-14; Preston (1963), pp. 56, 143; Hilton (1948), pp. 357-58. See also Higham (1978), pp. 206-7. James Weinstein claims that progressive reformers favored limiting expression rights, but he identifies the leaders of progressivism as those big businessmen that other scholars treat as conservatives. See Weinstein (1968), p. 116. Paul Murphy argues that progressive reformers were hostile to free speech in the prewar and wartime years but that postwar reformers supported expression rights because they were "repelled by wartime excesses and abuses." Murphy (1972), pp. 18-19, 31; Murphy (1979), pp. 25-26. Although R. Jeffrey Lustig recognizes that many progressives were active in the fight for free speech, he claims that the philosophical basis of progressivism was more conducive to the suppression of political dissent. Lustig (1982), pp. 171-72, 260. See also Kennedy (1980), pp. 46-47, 88.

8. Polenberg (1987), p. 32 (quoting Roosevelt); see p. 57. See also Preston (1963), p. 31; Murphy (1972), p. 194. Roosevelt did oppose speech restrictions that he feared might curtail his activities during World War I. Polenberg (1987), p. 32.

9. For a discussion of the Wilson administration and civil liberties, see Scheiber (1960). For a discussion of Palmer's career, see Coben (1963), especially p. vii ("how can we reconcile the progressive reformer of pre-World War One years . . . with the militant Attorney General who violated civil liberties to an extent unprecedented in American history"). Conservative Republicans led the floor fight against the Espionage Act of 1917, but they seemed more concerned that Wilson would censor their speech than with broader libertarian concerns. For general discussions of the legislative debate, see Kennedy (1980), pp. 24-26; Murphy (1979), pp. 76-85; Livermore (1966), pp. 32-37; Rabban (1983), pp. 1217-27; Polenberg (1987), p. 32.

10. For discussions highlighting the importance of communal themes in progressive thought, see Wiebe (1967); Hofstadter (1955a), pp. 174-78; Price (1974); Noble (1981); Higham (1978), pp. 158-263; Roche (1963a), p. 25; Thomas (1981).

11.      See Hofstadter (1955a), pp. 180-82; Higham (1978), pp. 235-42.

12. Kellor (1918), pp. 8-9. See Kellor (1916), pp. 14-15. For a general analysis of Americanization, see Higham (1978), pp. 204-7, 234-54; Gleason (1982), pp. 84-89.

13. Wartime efforts to achieve national unity continued to emphasize educational programs. The Wilson administration created a special agency, the Committee on Public Information, which produced propaganda intended to convince Americans that federal war policies were just. See Kennedy (1980), pp. 53-75.

14. Scheiber (1960), pp. 8-9; Lawrence (1974), pp. 37-38 (quoting Wilson); Polenberg (1987), p. 101 (quoting Clayton). See Murphy (1979), pp. 53-56; Scheiber (1960), pp. 7-9, 56; Kennedy (1980), p. 281 (noting Wilson's racism).

15. Scheiber (1960), p. 27. Wilson allegedly told a reporter that once war began the American people would "forget there was ever such a thing as tolerance"; however, this expression of sympathy for free speech seems to have been apocryphal. Auerbach (1967), pp. 611-12, 616. As Harry Scheiber has argued, from 1915 to 1919, Wilson consistently sought to suppress speech in the name of cultural uniformity and national unity. Scheiber (1960), especially pp. 52-53.

16. Preston (1963), p. 4. See Lawrence (1974), p. 107; Murphy (1979), pp. 46, 52-55; Roche (1963), pp. 26-75; Higham (1978), pp. 194-234; Scheiber (1960), pp. 59-60; Hofstadter (1955), pp. 180-82; Murphy (1972), p. 8; A. Anderson (1980), p. 74, n. 89; Keller (1977), pp. 559-60.

17. See Polenberg (1987), especially pp. 121, 142; Chafee (1920b).

18. Wigmore (1920), p. 543. For evidence of Wigmore's progressiv-ism, see chapter 1.

19. Murray (1955), P. 196.

20. For general discussions of deportation during the red scare, see Murray (1955), PP. 190-209; Preston (1963), pp. 200-207; Polenberg (1987), pp. 323-45; Chafee (1941), pp. 196-240.

21. See Kennedy (1980), p. 218; Pencak (1989), p. 18.

22. Pencak (1989), pp. 18, 256, 157, 257. For a discussion of the Legion's related attitudes toward speech and immigration, see Pencak (1989), pp. 3-23,144-69,256-60.

23. Croly (1965), p. 214; Croly retreated somewhat from the elitism of The Promise of American Life in his second book Progressive Democracy. For a discussion of this aspect of progressive thought, see Lustig (1982), especially pp. 201-8 (discussing Woodrow Wilson); Thomas (1981), pp. 909, 920; Erie Goldman (1952), p. 156; Weinstein (1968), pp. xiv, 155; Kolko (1963), p. 76. Roscoe Pound also promoted rule by an enlightened bureaucracy. See Wigdor (1974), pp. 198-200 (quoting Pound) ("exaltation of incompetency and distrust of special competency . . . seems to be an unhappy by-product of democracy").

24. Croly briefly noted that expression should be permitted unless it "made the excuse for personal injustice or national disloyalty." Croly (1965), p. 286.

25. Lippmann (1922), p. 197. See generally Lustig (1982), pp. 238-39.

26. Croly et al. (1917a), p. 316; Steel (1980), p. 125. See Croly et al. (1917d), p. 250; Croly et al. (1917b), p. 228; Croly et al. (1918a), p. 240 (objecting to postal censorship because administrative procedures in the postmaster general's office were inferior to those of the Justice Department).

27. See Croly et al. (1918b), p. 340 ("what our critics really demand is, not that a discussion of policy shall cease, but that any liberal contribution to it shall"); Croly et al. (1917e), p. 206; Croly et al. (1917c), PP. 255-57.

28. Kimball (1920), p. 447; Warren (1917), p. 341.

29. Kimball (1920), p. 447; Wigmore (1920), pp. 556-57. See Hall (1921), PP. 535-37.

30. Corwin (1934), p. 184. See Corwin (1941), pp. 112-13 ("the laissez-faire non-interventionist conception of governmental function [does not offer] a feasible approach to the problem of adapting the Constitution to the needs of the Twentieth Century. . . . The National Government is entitled to employ any and all of its powers to forward any and all of the objectives of good government"). For a brief discussion of Corwin's leading stature as an opponent of broad constitutional free-speech rights, see Vaughn (1979), pp. 116-17. For a summary of Corwin's scholarship and activities, see Crews (1985).

31. Paxson, Corwin, and Harding (1918), p. 101. Although the entries in the War Cyclopedia were not signed, Corwin must have written the selections on free speech and legal theory. Corwin's postwar writings repeated the same defense of congressional limitations on free speech. Furthermore, no other contributor to the War Cyclopedia was a specialist in constitutional law. For more evidence that Cor-win wrote the particular passages quoted in the text, see Vaughn (1979), p. 118, and n. 79 (citing Corwin's correspondence).

32. Corwin (1920a), p. 55. See Corwin (1920b), pp. 657-58; Kimball (1920), p. 447, n. 35; Wigmore (1920), pp. 556-57. For conservative arguments that the war power was the source of congressional power over political dissent, see chapter 1.

33. Corwin (1920a), p. 55. See Corwin (1920b), p. 658; Corwin (1952), PP. 338-39,357 (endorsing the majority opinion in Gitlow v. New York); Kimball (1920), p. 443; Hall (1921), p. 537. But see Hall (1921), P. 535 (suggesting that the bad tendency test only governed wartime legislation).

34. Paxson, Corwin, and Harding (1918), p. 218; see also pp. 82-83 (relying on the same argument to debunk the liberty of contract).

35. Corwin (1920), p. 55.

36. Ibid. See Kimball (1920), p. 447, nn. 32 and 34 (citing both Pound and Thayer in support of his defense of the majority opinion in Abrams v. United States).

37. Hall (1921), p. 537; Warren (1926), p. 462; Kimball (1920), pp. 447-48. See Corwin (1920a), p. 55; Hall (1921) (noting that judicial decisions sustaining legislation restricting speech were consistent with judicial decisions permitting legislative majorities to govern other areas of public life).

38. See Quandt (1970); Lustig (1982), p. 171.

39. Addams (1930), p. 404; see p. 380. See also Addams (1961), p. 40·

40. Addams (1964), pp. 6-7; Addams (1930), p. 401. See Addams (1945), p. 141 ("all other forms of growth begin with variation from the mass"); Addams (1907), p. 112; Addams (1930), pp. 88-89.

41. Addams (1945), pp. 21, 65; see also p. 58.

42. Addams (1930), p. 383; Addams (1961), p. 236; Addams (1964), p. 270. See Addams (1930), p. 40 (free speech is necessary to keep the community "better informed" on the political issues of the day); Ad-dams (1964), pp. 170-71.

43. Addams (1930), p. 407. See Addams (1961), pp. 239-56.

44. Addams (1965), pp. 32, 60-61; see p. 40; see also Addams (1907), pp. 16-17.

45. Dewey (1916), p. 115; Dewey (1929b), pp. 559-6o; Dewey (1950), p. 162. Dewey (1927), pp. 146-48, 203-9 (attacking Lippmann's elitist conception of democracy). See generally Damico (1978), pp. 107-8.

46. Dewey (1916), p. 98; Dewey (1950), p. 158.

47. Dewey (1939), p. 102. See Dewey (1927), p. 167; Dewey and Tufts (1913), p. 485 (a just social order will promote both diversity and free speech).

48. Dewey (1939), P. 128; Dewey (1927), p. 208. See Dewey (1927), pp. 142, 152 (better means of communication were "a prerequisite" to effective participation). Dewey (1950), pp. 20-21, 160-61; Dewey (1939), p. 175 (centrality of "extending the application of democratic methods, methods of consultation, persuasion, negotiation, communication, co-operative intelligence"). See generally Damico (1978), pp. 55, 103, 124.

49. Dewey (1916), p. 97. See Dewey (1939), p. 12.

50. Dewey (1939), p. 116; Dewey (1935), pp. 79-85. See Dewey (1969), pp. 70-73. See generally Lustig (1982), pp. 124-25; Quandt (1970), pp. 128-29; Damico (1978), pp. 49-50.

51. Brandeis (1934), p. 270; Brandeis (1942), p. 10.

52. Brandeis (1934), pp. 270, 233. See also Urofsky (1971), p. 154.

53. Brandeis (1934), pp. 233-34; Brandeis and Frankfurter (1986), p. 323. Brandeis did assert that discussion should cease in times of action, but at no point did he assert that such a cessation be coerced. See Brandeis (1934), p. 233; see also pp. 35-36 (need for a broad public debate over Zionist issues).

54. E. Freund (1928), pp. 220-21; E. Freund (1916), p. 2. See Kraines (1974), pp. viii, 88-90.

55. Kallen (1924), p. 186, nn. 1, 65; Bourne (1964), p. 73; Bourne (1977), pp. 242, 267.

56. Sumner (1982), p. 143.

57. Bourne (1977), p. 246; Dewey (1950), p. 147. For other early civil libertarian expressions of the value of individual development, see Dewey (1916), p. 142; Dewey (1935), pp. 25, 32; Dewey (1939), p. 129; Brandeis (1942), p. 11 ("each individual has the right and duty to develop"); Whitney, at 375 (Brandeis, J., concurring); Addams (1964), p. 178; Addams (1930), p. 383; Kallen (1924), p. 123 ("there are human capacities which it is the function of the state to liberate and to protect in growth").

58. Spencer (1972), p. 262. The racial beliefs of many conservative libertarians, however, limited their conception of diversity to behavior exhibited by Aryan, Nordic, or Teutonic types. See Burgess (1890a), PP. 44-45.

59. Dewey (1939), p. 159; Dewey (1927), pp. 211-13; Kallen (1924), p. 183. See Addams (1907), pp. 121-22; Addams (1945), pp. 104-5; Bourne (1964), pp. 75-76. See also Quandt (1970), pp. 36-50.

60. See Brandeis (1933), p. 223 ("man's work often outruns the capacity of the individual man"), p. 276; Brandeis (1934), pp. 196-97; Brandeis (1932), p. 151 ("a huge organization is too clumsy to take up the development of an original idea"); Brandeis (1934), 127 (large organizations "narrow the field of human effort by confining leadership to a comparatively few individuals").

61. Paper (1983), p. 351. See Brandeis and Frankfurter (1986), pp. 325-26, 337. Compare New State Ice v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting); Brandeis (1934), p. 65.

62.      Dewey (1935), p. 66; Brandeis (1941), p. 36.

63.      Addams (1907), p. 28; Addams (1964), p. 160.

64. Dewey (1935), p. 67. See Dewey (1929b), p. 569.

65. Gilbert, at 338 (Brandeis, J., dissenting). See Whitney, at 375 (Brandeis, J., concurring) ("public discussion is a political duty"). See generally Brandeis (1941), p. 36 ("duty must be accepted as the dominant conception in life").

66. I do not believe that late nineteenth-century intellectuals were opposed to the empirical methods of progressive science, although they may have disputed some of its epistemological underpinnings. Sumner, for example, always claimed that an examination of actual facts would support laissez-faire policies. See Sumner (1982), p. 135; Purcell (1973), p. 9. Similarly, Justice Brewer was quite willing to take judicial notice of a fact-laden "Brandeis brief." Muller v. Oregon, 208 U.S. 412, 419-20 and n. 1 (1908). Roscoe Pound may have also thought that progressive science would support laissez-faire policies with some modifications. Wigdor (1974), p. 208.

67. Kallen (1924), pp. 120-21; Dewey (1939), p. 162; Dewey (1935), p. 90. Dewey did not specifically argue for "socialized economy" until the 1930s, but his earlier writings asserted that wide-ranging governmental intervention in economic life was necessary to establish the prerequisites of a functional system of free speech.

68. Bourne (1964), p. 46; Dewey (1935), p. 27; Dewey and Tufts (1913), p. 438. See Dewey (1928), pp. 249-50; Dewey (1927), p. 168; Addams (1907), p. 42 ("the whole situation is more industrial than political"); Brandeis (1933), p. 59; Brandeis (1942), pp. 5-7; Kallen (1928), pp. 15-16; Bourne (1977), pp. 216-18, 239, 243. See generally Murphy (1972), pp. 246-47; Lustig (1982), p. 130; Damico (1978), p. 89.

69. Brandeis (1933), p. 59. See Brandeis (1942), p. 7; Paper (1983), p. 132 (a financially dependent person is not "free to speak his mind").

70. Addams (1961), p. 193; Dewey and Tufts (1913), p. 447. See Ad-dams (1907), p. 127; Brandeis (1942), pp. 5-6; Dewey (1935), p. 89.

71. Brandeis (1933), p. 33.

72. Addams (1961), p. 310.

73. Dewey (1935), p. 53.

74. See Dewey (1939), p. 149; Dewey (1929b), p. 519.

75. See chapter 4, nn. 11-18 and accompanying text.

76. Addams (1965), p. 50; Dewey (1929b), p. 467. Addams (1907), PP. 47-48; see pp. 409-10. See also Addams (1930), p. 410 ("we may get, and should get, something of that revivifying and upspringing of our culture from our contact with the groups who come to us from foreign countries"); Dewey (1927), p. 115; Dewey (1950), p. 53.

77. Brandeis (1942), pp. 28, 54. For a general summary of the de-bate over Zionism among American Jews, see Urofsky (1975).

78. Brandeis (1942), p. 49.

79. Ibid., pp. 10-11.

80. Kallen (1924), p. 124; Bourne (1964), pp. 117, 129. Although Kal-len's Culture and Democracy in the United States was published in 1924, many essays in that work appeared in various journals during the 1910s.

81. Kallen (1924), p. 124. Dewey argued for a slightly different form of national pluralism, a federation of different types of associations. In his view, "the state remains highly important—but its importance consists more and more in its power to foster and co-ordinate the activities of voluntary groupings." Dewey (1950), p. 158. See Dewey (1929b), p. 430. For general discussion of cultural pluralism, see Glea-son (1982), pp. 96-105.

82. Bourne (1964), p. 118; see also p. 122; Kallen (1924), pp. 184, 231.

83. Bourne (1964), pp. 113-14; Brandeis (1934), p. 209; Addams (1965), pp. 95-104. Brandeis, Kallen, and Bourne either actively participated in or endorsed the goals of the Zionist movement, which they believed would provide a bulwark against the destructive effects of the assimilation threatened by the breakdown of the ghetto walls in modern life. See Bourne (1964), pp. 128-33 (Zionism as "the purest pattern and most inspiring . . . [conception] of trans-nationalism"); Brandeis (1942), p. 30; Kallen (1977), p. 529.

84. Dewey and Tufts (1913), pp. 446-47; Dewey (1916), p. 120; M. White (1957), p. 97 (quoting Dewey). See Dewey (1916), pp. 162,416. See generally Damico (1978), p. 36.

85. Bourne (1977), pp. 210, 207. For similar opinions, see Brandeis (1942), pp. 64 ("In a government where everyone is part sovereign, everyone should be competent, if not to govern, at least to understand the problems of government; and to this end education is essential") and 22 (education is necessary to develop individuality); Brandeis (1933), p. 32; Addams (1965), pp. 50, 178; Addams (1907), pp. 47-48; Addams (1930), pp. 409-10.

86. Brandeis (1934), pp. 73, 270. See Brandeis (1932), p. 208.

87. Brandeis (1934), p. 83. See Brandeis (1933), p. 11. Although Brandeis was an enthusiastic proponent of scientific management, he insisted that workers had the right to approve industrial changes in advance: "in a democratic community men who are to be affected by a proposed change of conditions should be consulted." Brandeis (1933), p. 54.

88. Dewey (1929b), pp. 524-25; Addams (1964), p. 139. See Ad-dams (1964), pp. 143-45, 179-80; Addams (1907), pp. 168-69; Bourne (1977), PP. 202-4, 331-35.

89. Dewey (1929b), pp. 573, 567.

90. Ibid., p. 569; see generally, pp. 566-75.

91. Ibid., p. 569.

92. Ibid., pp. 571, 575.

93. Kallen (1924), pp. 144, 136.

94. Bourne (1964), p. 41.

95. Ibid., pp. 71, 65-91.

96. Ibid., p. 54. Jane Addams's similar fear of political oppression was one reason she opposed declaring war in 1917. See Addams (1945), pp. 174-75; Addams (1907), p. 220. Although Addams elected not to speak out against wartime repression until after the war, when the government threatened to confiscate the literature of left-wing organizations, she offered those organizations the use of the Hull-House Library. Addams (1930), pp. 140-43.

97. Brandeis (1975), p. 441; Brandeis and Frankfurter (1986), pp. 323-24 ("I have never been quite happy about my concurrence in the Debs and Schenck cases. I had not then thought the issues of freedom of speech out. . . . Not until I came to write the Pierce (&) Schaefer cases did I understand it").

98. Pierce, at 273 (Brandeis, J., dissenting). See Schaefer, at 495 (Brandeis, J., dissenting).

99. Whitney, at 375 (Brandeis, J., concurring).

100. See Blasi (1988), p. 671 ("Brandeis begins by invoking the authority of 'those who won our independence' ").

101. Whitney, at 373 (Brandeis, J., dissenting); Brandeis and Frankfurter (1986), pp. 320, 325.

102. Whitney, at 373 (Brandeis, J., concurring).

103. Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 534 (1924) (Brandeis, J., dissenting). See Weaver v. Palmer Bros. Co., 270 U.S. 402, 416 (1926) (Holmes, J., dissenting); Frost Trucking Co. v. Railroad Commission of California, 271 U.S. 577, 600-601 (1926) (Holmes, J., dissenting); Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 418-19 (1922) (Brandeis, J., dissenting); Adams v. Tanner, 244 U.S. 590, 599-600 (1917) (Brandeis, J., dissenting).

104. Whitney, at 373-74 (Brandeis, J., concurring).

105. Dewey (1929a), p. 102; see also pp. 100-106. See Dewey (1929b), P. 479; Dewey (1935), pp. 5-6; Bourne (1977), pp. 238-39; Addams (1930), pp. 340-41.

106. The famous Brandeis brief in Muller v. Oregon consisted of 2 pages of legal argument and 110 pages of actual data. Brandeis (1908). See Brandeis (1933), p. 251; Brandeis (1934), pp. 321-22 ("no law, written or unwritten, can be fully understood without a full knowledge of the facts out of which it arises, and to which it is to be applied"), 325; Burns Baking Co., at 504, 520 (Brandeis, J., dissenting) ("unless we know the facts on which the legislatures may have acted, we cannot properly decide whether they were [or their measures are] unreasonable, arbitrary or capricious"); Adams, at 590, 600 (Brandeis, J., dissenting).

107. New State Ice v. Liebmann, at 262, 311 (Brandeis, J., dissenting); also at 284-87, 300. See Burns Baking Co., at 534 (Brandeis, J., dissenting); Adams, at 600 (Brandeis, J., dissenting); Brandeis (1934), p. 65 ("when we know that the evil exists which it is sought to remedy, the legislature must be given latitude in experimentation").

108. Gitlow, at 673 (Holmes, J., dissenting).

109. Edward A. Ross, a prominent progressive sociologist, chaired the conference. See Ross (1915) (advocating broad rights of free speech).

110. Schofield (1921), pp. 526-27.

111. Schofield (1921), pp. 43, 526. Of course, like many before and after him, he found that in the case of free speech "the common sense of the community and the law of the land [were] in harmony." Scho-field (1921), p. 728.

112. Ibid., p. 540.

113. Ibid., p. 521.

114. Ibid., p. 567.

Schofield's interpretation of the due process right of free speech is difficult to determine. In his essay on free speech, he reserved judgment on whether expression was a due process right. In another essay, he asserted that the Fourteenth Amendment restricted the power of state judges to alter common law doctrines, but he did not think that similar limits had been placed on state legislation. Schofield (1921), p. 34. Unfortunately, Schofield died before finishing a constitutional law treatise that might have clearly established his views on the scope of the Fourteenth Amendment.

115. Chafee (1919a), pp. 232-33, n. 1. See E. Freund (1921) ("excellent treatment").

116. Schofield (1921), pp. 569-71; see also pp. 536, 550-51. For a general discussion of the weaknesses of Schofield's position when compared to that of late nineteenth-century conservative treatise writers, see Rosenberg (1986), pp. 203-4.

117. Schofield (1921), p. 515; see also pp. 521-22, 534-35.

118. Ibid., p. 523.

119. Ibid., p. 524.

120. Ibid., pp. 524, 532.

121. Ibid., p. 536. Schofield also suggested that states had the power to forbid all forms of political activity by public employees and to require that persons explicitly state all their reasons for recommending or objecting to candidates. See ibid., p. 514, n. 11 (questioning the holdingof Louthan v. State, 79 Va. 196 [1884] and Ex Parte Harrison , 212 Mo. 88 [1908]).

122. Schofield (1921), p. 524.

123. The full text of the Espionage and Sedition Acts is quoted in chapter 3, nn. 2-3. Some clauses of the Sedition Act would probably be unconstitutional under Schofield's definitions.

124. Schenck, at 47, 52. The full text of the leaflet is reprinted in the record of that case. "Transcript of Record," Schenck v. United States, pp. 4a-b.

125. The Supreme Court also handed down Frohwerk v. United States, 249 U.S. 204 (1919), on March 10, 1919. Although that decision rejected a free-speech claim, the result might be explained by the defendant's failure to place the full factual record of the case before the Court. Frohwerk, at 206, 209. See Bogen (1982), pp. 164-65.

126. Debs, at 213, 216. The full text of Debs's speech is reprinted in the record of that case. "Transcript of Record," Debs v. United States, pp. 3-15.

127. Chafee (1941), p. 86.

128. See Fox v. Washington, 236 U.S. 273 (1915); Burr v. Advertiser Newspaper Co., 154 Mass. 238, 242 (1891) (Holmes, J.); Commonwealth v. Davis, 162 Mass. 510 (1895); Patterson v. Colorado, 205 U.S. 454 (1907). See also McAuliffe v. Mayor of New Bedford, 155 Mass. 216 (1892) (states can fire policemen who participate in political campaigns). For general discussions of Holmes's prewar views, see chapter 1, nn. 46, 101.

129. Lochner v. Hew York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting). See R. Smith (1985), p. 85 ("one problem was that the dominant strain in the triumphant Lochner opposition was a relativistic pragmatism which lent itself most readily to support for majoritarian democracy").

130. See Rogat and O'Fallon (1984), p. 1383; Cover (1981), p. 373.

131. Abrams, at 628-29 (Holmes, J., dissenting).

132. While Holmes asserted that "the defendants had as much right to publish [their leaflets] as the Government has to publish the Constitution of the United States," Abrams, at 629 (Holmes, J., dissenting), his opinion clearly indicated that he thought Abrams could have been punished if the Sedition Act had outlawed verbal attempts to interfere with American intervention in the Russian Revolution. See Abrams, at

628. (noting that Abrams did intend to interfere with that facet of American foreign policy).

133. Abrams, at 630 (Holmes, J., dissenting).

134. Chafee (192ob), 771. See generally Polenberg (1987), p. 241 (citing other laudatory remarks).

135. Lerner (1943), p. 306. See Rogat and O'Fallon (1984), p. 1387; M. White (1957), p. 238; Bogen (1982), p. 187; Kalven (1988), p. 156; Rogat (1962-63), pp. 3-4, nn. 1 and 4 (citing sources).

136. As Yosal Rogat noted, it is difficult to find other areas of law in which Holmes defended civil liberties. Rogat (1962-63). For the standard view of Holmes as the liberal hero, see Chafee (1941), p. 509; Bo-gat (1962-1963), pp. 3-4 (citing sources).

137. Raboon (1983), pp. 1305-17; Gunther (1975), pp. 720, 741-43; Kalven (1973), pp. 238-39; Ginsburg (1973), pp. 243, 246-47; Kalven (1988), p. 146; D. Smith (1986), p. 31; Konefsky (1956), p. 193; Ragan (1971); G. White (1976), p. 170; Kelly, Harbison, and Belz (1983), pp. 528-29; Bollinger (1983), p. 461; Rogat and O'Fallon (1984), p. 1378; Corwin (1952), pp. 326,331-34, 356-57.

138. Bogen (1982), p. 99, 173-87; Bowen (1944), p. 390; Murphy (1972), p. 250.

139. Rabban (1983), pp. 1305-6 and n. 634 (citing Holmes's correspondence).

140. Abrams, at 627 (Holmes, J., dissenting). See Holmes and Poi-lack (1941), p. 32.

141. Holmes never explicity stated why he concurred in Gilbert. On Brandeis's proposed dissent he merely scribbled, "I think you go too far." Rabban (1983), p. 1319. To Sir Frederick Pollak, Holmes wrote, Brandeis "had one ground worthy of serious consideration and others I thought all wrong." Holmes and Pollak (1941), p. 61. This ground may have been the claim that federal sedition laws preempted state sedition laws, a ground that Chafee urged Brandeis to emphasize. See D. Smith (1986), p. 288, n. 3. Holmes also dissented in Meyer v. Nebraska, 262 U.S. 390 (1923), a case that held states could not ban the teaching of the German language.

142. Holmes and Pollak (1941), pp. 32, 162.

143. Rabban (1983), p. 1319; Bogen (1982), p. 107, n. 515. If Holmes was unwilling to be the sole dissenter in Pierce, there is good reason to think that he would have been unwilling to be the sole dissenter in Schaefer v. United States, a case that raised similar constitutional issues.

The inspiring language of Holmes's free-speech dissents did not necessarily measure the depth of Holmes's convictions. As Yosal Rogat observed, Holmes was capable of writing stirring opinions on both sides of an issue. Rogat (1962-1963), p. 267.

144. Holmes and Laski (1963b), p. 320.

145. Holmes (1920), pp. 157-58; Lochner, at 76 (Holmes, J., dissenting); Gitlow, at 673 (Holmes, J., dissenting).

146. McDonald v. Mabee, 243 U.S. 90, 91 (1917); Holmes (1920), p. 310. See generally E. Wilson (1962), pp. 762-63; M. D. Howe (1963), pp. 174-75; Rogat (1964), p. 255; Ragan (1971), p. 26; Rogat and O'Fal-lon (1984), p. 1362.

147. Holmes (1963), p. 37; Holmes (1920), p. 314. See Holmes (1963), pp. 40-41; Gunther (1975), pp. 756-57. Holmes wrote to Harold Laski, "My thesis would be (1) if you are cocksure, and (2) if you want it very much, and (3) if you have no doubt of your power—you will do what you believe efficient to bring about what you want—by legislation or otherwise." Holmes and Laski (1963a), p. 116.

148. Holmes and Laski (1963a), p. 85. See Holmes and Laski (1963b), p. 220; Holmes and Pollak (1941), p. 36; Rogat (1964), p. 252, n. 194 ("Dewey's main objective was to keep us talking in order to find a way of avoiding fighting. But no one . . . stresses more than Holmes that soon it will be necessary to stop talking and start fighting").

149. Northern Securities Co. v. United States, 193 U.S. 197, 409 (1904) (Holmes, J., dissenting); Holmes (1963), p. 54. See Swift v. United States, 196 U.S. 375, 396, 402 (1905); Commonwealth v. Peaslee, 177 Mass. 267, 272 (1901). Holmes thought courts could use evidence of intent when determining the probability that an act would be "followed by harmful consequences." Holmes (1963), p. 56.

150. Bogen (1982), pp. 100 (quoting Holmes's letter to Chafee), 154-63; Rogat (1964), pp. 215-17; Chafee (1941), pp. 81-82; Rabban (1983), pp. 1265-75; Rogat and O'Fallon (1984), pp. 1361-66.

151. Abrams, at 629 (Holmes, J., dissenting); Gitlow, at 673 (Holmes, J., dissenting). See Holmes and Laski (1963b), p. 37 (the Git-low dissent defended "the right of an ass to drool"); Corwin (1952), pp. 340-41 ("de minimis . . . was the root-stem of [the Gitlow dis-sent]") Konefsky (1956), p. 206; Kalven (1988), p. 143; Lustig (1982), p. 119; G. White (1971), p. 75; Rabban (1983), pp. 1312-13; Bogen (1982), pp. 172-74, 182-84.

152. Gitlow, p. 673 (Holmes, J., dissenting).

153. Compare Gitlow, at 658-59, n. 2 with Gilbert, at 327.

154. Holmes and Laski (1963b), p. 37; Morlan (1955).

155. Holmes and Laski (1963a), pp. 55, 67, 105; Holmes (1934), p. 59. See also M. D. Howe (1963), pp. 100-101 ("I think small beer of any man who does not commit himself to his crowd").

156. Holmes (1936), p. 137.

157. Goodrich (1921), p. 500.

158. Ibid., pp. 496, 493. Goodrich (p. 495) also declared that the punishment meted out in Pierce v. United States "was very harsh."

159. Ibid., p. 500.

160. Holmes (1920), p. 173; E. Freund (1921), p. 344.

161. E. Freund (1921), pp. 344, 345. In 1921, Freund still hoped that courts might declare unconstitutional laws punishing advocacy of peaceful anarchy, a matter not yet considered by the Supreme Court.

Freund's earlier Fourteenth Amendment defense of free speech may have stemmed from the Supreme Court's willingness to use the due process clause to protect substantive freedoms, rather than from Freund's personal belief that free speech was a due process right. See chapter 3, nn. 100-104 (noting that Brandeis made similar arguments).

162. See chapter 1.

163. E. Freund (1921), p. 344; E. Freund (1973), pp. 239-40.

164. E. Freund (1973), pp. 239-40; E. Freund (1921), p. 345.

165. Masses Publishing Co. v. Patten, 244 F. 535, 540 (S.D.N.Y. 1917). See Kalven (1988), pp. 125-28.

166. Masses Pub. Co., at 538.

167. Gilbert v. Minnesota, at 325, 338-42 (Brandeis, J., dissenting).

168. Schaeffer, at 483 (Brandeis, J., dissenting).

169. Pierce, at 269-70 (Brandeis, J., dissenting).

170. Masses Pub. Co., at 540. See E. Freund (1973), p. 239.

171. Pound (1954), p. 66.

172. Gitlow, at 654-55.

173. Hand (1953), P. 278; Hand (1963), p. 56.

174. Dennis v. United States, 341 U.S. 394, 539-40 (1951).

175. Brandeis and Frankfurter (1986), p. 320.

176. Whitney, at 373-74 (Brandeis, J., concurring).

177. Ibid., 376 (Brandeis, J., concurring).

178. Ibid., 373 (Brandeis, J., concurring). Thus, though he never suggested that Anita Whitney had advocated criminal conduct, Brandeis (at 379) claimed that she might have been constitutionally convicted because there was evidence "which tended to establish the existence of a conspiracy . . . to commit serious crimes" and "that such conspiracy would be furthered by the activity of the society of which Miss Whitney was a member."

179. Ibid., 377-78 (Brandeis, J., concurring).

180. Brandeis (1934), p. 51. See Brandeis (1942), pp. 5-6.

181. Brandeis and Frankfurter (1986).

182. See Whitney, at 373 (Brandeis, J., concurring) citing Meyer v. Nebraska, at 390 (states could not ban the teaching of German); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (state could not require all children to attend public schools); and Farrington v. Tokushige, 273 U.S. 284 (1927) (the Constitution limits state regulation of private schools).

183. Lusky (1982), p. 1095.

184. Near v. Minnesota, 283 U.S. 691 707 (1931). See Herndon v. Lowry, 301 U.S. 242, 255 (1937); DeJonge v. Oregon, 299 U.S. 353, 364 (1937); Stromberg v. California, 283 U.S. 353, 368 (1931).

1. See D. Smith (1986), p. 1; Auerbach (1969), p. 531; Prude (1973), pp. 638-39, 655; Rabban (1981), p. 516; Meiklejohn (1960), p. 54; Kal-ven (1964), p. 206; Wright (1982), p. 634; Re (1981), pp. xxii-xxix.

2. Frankfurter (1961), p. 440; Auerbach (1969), p. 531 (quoting Arthur Garfield Hays, a prominent member of the ACLU in the 1920s); Frankfurter (1961), p. 443; M. D. Howe (1957), P. 183; Prude (1973), pp. 638-39, 653; D. Smith (1986), pp. 276-77.

3. Chafee (1919), p. 967 (quoting Schenck v. U.S., 249 U.S. 47 [1919]).

4. Chafee (19192), p. 967; Chafee (1941), pp. 81-82. There may have been another circumstance where Chafee protected less speech than a conservative treatise writer. Chafee believed that the Haymarket anarchists were constitutionally convicted; John Randolph Tucker argued that their free-speech rights had been violated. Chafee (1941), p. 145. Unlike Tucker, Chafee may have believed that the defendants in that case had actually advocated lawless conduct.

5. See Dewey (1927), p. 51.

6. Chafee (1949a), p. 895; Prude (1973), p. 652 (quoting Chafee). See Chafee (1949a), p. 901; Chafee (1956), p. 70; Gunther (1975), p. 773 (quoting Chafee).

7. Chafee (1956), P. 70; Chafee (1928b), p. 99. See Chafee (19282), p. 132; Gunther (1975), p. 773 (quoting Chafee). See generally Gunther (1975), p. 746; Prude (1973), p. 641; Rabban (1983), p. 1299; D. Smith (1986), PP. 272-73.

8. Chafee (1919a), pp. 960-64; Chafee (1919b), pp. 380-81.

9. Chafee (1920a), p. 156; Chafee (192ob), p. 771.

10. Chafee (1919a), p. 967.

11. Rabban (1981), p. 594. See sources cited in chapter 3, n. 126.

12. Chafee (1919a), p. 944; Rabban (1981), especially pp. 589-90.

13. Chafee (1919a), p. 947. The accuracy of Chafee's claim that the framers intended to abolish seditious libel is the subject of an ongoing scholarly dispute. See Levy (1985); Rabban (1985); D. Anderson (1986).

14. Chafee (1941), pp. 506-7; Chafee (1919a), pp. 944-45.

15. Chafee (1941), p. 360.

16. Ibid., p. 294. See Chafee (1965), p. 33. For a discussion of conservative thought and state practice, see chapter 1.

17. For Meyer v. Nebraska, see 262 U.S. 390 (1923). For Pierce v. Society of Sisters, see 268 U.S. 510 (1925).

18. Chafee (1941), pp. 321-22.

19. The defense could not have cited Pierce, which was decided the week before Gitlow v. New York (268 U.S. 652 [1925]) was handed down.

20. Pollak and Nelles (1925), pp. 11-13, 76, 98-103.

21. For a discussion of these cases, see chapter 1.

22. Chafee (1941), pp. 295, 296 ("Justice Brandeis also suggests the possibility that liberty of speech is one type of 'liberty' of which under another clause of the Fourteenth Amendment no person can be deprived without due process of law").

23. Ibid., pp. 295-98. Similarly, Chafee's discussion of Gitlow v. New York did not defend Fourteenth Amendment protection for free speech. Chafee (1941), pp. 321-25; see also pp. 387-88 (failing to explain why the Fourteenth Amendment protected certain educational rights).

24. D. Smith (1986), p. 90 (Alexander Meiklejohn was the particular target of that criticism).

25. Chafee (1941), p. 322, n. 9.

26. Warren (1926), pp. 462-64.

27. Chafee (1949a), p. 900.

28. Chafee (1941), p. 360 (quoted below).

29. D. Smith (1986), p. 5. See Polenberg (1987), pp. 283-84; Prude (1973), p. 656; Auerbach (1969), pp. 518-22; Kammen (1986), p. 6.

30. Auerbach (1969), p. 519. See, e.g., Chafee (1941), p. 4.

31. Chafee (1941), p. 4; Chafee (1928b), p. 97. See Chafee (1941), pp. 497-509; Chafee (1965), p. 6.

32. Chafee (1941), p. 325; see also p. 136 (the Abrams dissent was a "magnificent exposition of the philosophical basis of" the First Amendment). Although Holmes frequently rejected free-speech claims, Chafee gave little or no explanation of those votes. He either implied that Holmes had since changed his mind or, as in the case of the first three Espionage Act cases, claimed that Holmes's vote was part of a libertarian strategy designed to promote the clear and present danger test. Chafee (1941), pp. 86 (explaining Schenck, Frohwerk v. United States, 249 U.S 204 [1919], and Debs v. United States, 249 U.S. 211 [1919]), 164 (no effort to explain Holmes's vote in Fox v. Washing ton, 236 U.S. 273 [1915]), 290 (explaining Holmes's vote in Gilbert v. Minnesota, 254 U.S. 325 [1920], in terms of state's rights, an explanation that is obviously wrong—see chapter 3), P. 321 n. 7 (no effort to explain Holmes's vote in Meyer v. Nebraska), p. 544 (implying that Holmes would no longer have voted to affirm Mutual Film Corp. v. Ohio Industrial Commission, 236 U.S. 230 [1915]).

33. Chafee (1941), p. 360.

34. Chafee (1956), p. 77.When Chafee listed modern heroes of free speech, he paired Hughes with Holmes more frequently than any other civil libertarian. Chafee (1941), pp. 4, 361-62, 437-38; Chafee (1956), pp. 81, 129. Chafee also included Justice Stone in this category. Chafee (1941), p. 360.

35. Chafee (1941), p. 360.

36. Ibid., pp. 348-49; Chafee (1956), pp. 65-77. See Chafee (1941), pp. 437-38 (not noting Brandeis in a shorter compilation of those who had influenced the development of the constitutional defense of free speech). Chafee did once credit Brandeis, along with Holmes, with developing "a group of arguments for toleration that may fitly stand beside the Areopagitica and Mill's Liberty." Chafee (1941), p. 325.

37. Chafee (1920a), p. 161 See D. Smith (1986), pp. 88, 301, n. 37.

38. Chafee (1941), p. 4; Chafee (1920a), p. 2.

39. D. Smith (1986), p. 264.

40. Chafee (1932), p. 44; Chafee (1928a), pp. 165, 185; Chafee (1949b), p. 270; Chafee (1941), p. 312; Chafee (1928a), p. 229.

41. Chafee (1928a), pp. ix-x; Prude (1973), P. 636, n. 14. Chafee did write extensively on other legal subjects and was particularly interested in the problems of equity. For a complete bibliography of Chafee's work, see Chafee (1981).

42. Chafee (1920b).

43. Auerbach (1969), p. 525 (quoting Chafee), pp. 518-19, 521-22 (citing other instances of similar statements); Chafee (1920a), p. 2; Chafee (1941), p. 4.

44. Richard Hofstadter emphasized the centrality of this theme in progressive thought. See Hofstadter (1955a), especially p. 328; Hof-stadter (1973), pp. 266-367.

45. Chafee (1928a), p. 233; Chafee (1919b), p. 384; Chafee (1932), P. 44; Chafee (1949b), p. 278; Chafee (1956), pp. 295-96; Chafee (1965), p. 27.

46. Chafee (1949b), p. 270.

47. Chafee (1941), pp. 514-16; Chafee (1919b), p. 384; Chafee (1956), p. 76.

48. Chafee (1929), p. 84.

49. Ibid., pp. 84-85. See Chafee (1928a), p. 230 (unemployment).

50. Chafee (1956), pp. 60, 63 (quoting George Marshall); Chafee (1928a), pp. 224-25. See Chafee (1928a), pp. 8,226.

51. Chafee (1956), pp. 264-66.

52. Chafee (1941), p. 195; Chafee (1965), pp. 24, 474-75; Chafee (1941), pp. 234-35 (endorsing cultural diversity); Chafee (1956), pp. 41, 266.

53. Chafee (1956), p. 45; Chafee (1965), p. 565.

54. Chafee (1928a), pp. 87, 15, 181 (asserting that the "general welfare of citizens is in charge of the state governments"), 200, 223 (state, church, and trade unions should not "become unduly centralized"); Chafee (1956), p. 52.

55. See D. Smith (1986), pp. 316-17, n. 39.

56. Chafee (1928a), pp. 27-28.

57. Chafee (1965), pp. 21-22.

58. Chafee (1941), p. 559.

59. Chafee (1965), pp. 27, 471, 474-75; Chafee (1928a), p. 167.

60. Chafee (1956), p. 61; Chafee (1928b), p. 113. See Chafee (1956), pp. 97-98.

61. Chafee (1928b), p. 113.

62. Chafee (1965), p. 545; Chafee (1956), p. 108.

63. See Chafee (1965), especially pp. 680-719.

64. Chafee (1941), pp.551-52, 559; Chafee (1965), pp. 472, 479, 706.

65. D. Smith (1986), p. 86. See Wigdor (1974), p. 201 (Pound's course "entirely changed my views of law").

66. D. Smith (1986), pp. 119-20.

67. See D. Smith (1986), p. 154.

68. Chafee (1932), pp. 39, 44; Chafee (1928a), p. 254, n. x (endorsing Cardozo's view of the judicial process); Chafee (1947), p. 419.

69. D. Smith (1986), p. 103 (quoting Chafee). See Prude (1973), pp. 651-52 (quoting Chafee).

70. Chafee (1947), p. 419. See Chafee (1932), pp. 38-39; Chafee (1928a), p. 261.

71. Chafee (1928a), pp. 36, 263. See Chafee (1936), p. 516; Chafee (1947), p. 420; Chafee (1932), p. 39 ("no single human being is wise enough to dispense with the wisdom of his predecessors").

72. Chafee (1936), p. 508.

73. Chafee (1949b), p. 278. See Chafee (1932), p. 44. See generally Chafee (1949a), p. 896.

74. Chafee (1941), p. 138.

75. See ibid., pp. 360-61; Chafee (1956), pp. 50-51, 167; Chafee (1928a), p. 69.

76. Chafee (1920b), p. 753.

77. Chafee (1919b), p. 382.

78. See chapter 3.

79. Chafee (1941), pp. 18-23, 499-506.

80. Ibid., pp. 29, 14. See Chafee (1928b), pp. 88, 94-95.

81. See chapter 2. Chafee also believed that the rule against prior restraints needed to be modified. Chafee (1919a), p. 939.

82. Chafee (1941), pp. 29-30.

83. Ibid., p. 509.

84. Ibid., p. 16.

85. Ibid., p. 32.

86. See chapter 4, nn. 68-71 and accompanying text.

87. Chafee (1941), p. 41.

88. Chafee (1919a), p. 959; Chafee (1941), pp. 33-34.

89. Chafee (1928a), pp. 67-68.

90. Chafee (1941), p. 149; Chafee (1965), p. 795. See Chafee (1919a), P. 939. See generally D. Smith (1986), p. 276.

91. Chafee (1941), pp. 34, 510.

92. Chafee (1919a), p. 932, n. 1. See Chafee (1941), p. 34 (quoting Holmes on the obligation of judges to consider social interests).

93. See Chafee (1941), pp. 31-32; Chafee (1949a), p. 900.

94. Chafee (1941), pp. 234, 312-13; Chafee (1920a), p. 283.

95. Chafee (1941), p. 137.

96. Ibid., pp. 33, 360-61.

97. Chafee (1956), pp. 106-7, 78-79, 266; Chafee (1949a), p. 900; Chafee (1941), p. 138.

98. Chafee (1949a), p. 900. See Chafee (1956), pp. 78-79. Chafee occasionally stated that the First Amendment covered subjects that "had no relation to self-government." See Chafee (1949b), p. 273; Chafee (1941), p. 138; Chafee (1956), pp. 106-7. However, even if Cha-fee believed that some nonpolitical speech was within the scope of the First Amendment, he clearly asserted that judicial activism on behalf of free speech was justified by the judicial obligation to police the democratic process.

99. Chafee (1956), p. 114..

100. Chafee (1941), pp. 31-35, 149, 158. See Chafee (1965), p. 6.

101. Chafee (1928b), p. 96. See Chafee (1965), p. 6; D. Smith (1986), P. 79, 274.

102. Rabban (1983), p. 1285 (quoting Chafee).

103. Chafee (1941), p. 35.

104. Dennis v. United States, 341 U.S. 494, 544-46 (1951) (Frankfurter, J., concurring).

105. Chafee (1941), p. 561. See chapter 4, n. 47. Chafee's approach seems to be what Martin Shapiro calls "preferred position balancing." Shapiro (1966), pp. 150-52. Chafee might have believed that Frankfurter's balancing approach was more appropriate when speech was not directly concerned with attaining truth on matters of public interest. See Chafee (1965), pp. 57-58.

106. For the classic discussions of the negative radiations of the commerce clause, see H. P Hood & Sons v. Du Mond, 336 U.S. 525 (1949); Gibbons v. Ogden, 9 Wheat. 1 (1824).

107. Chafee (1928a), pp. 47-48. When Gilbert was before the Court, Chafee wrote Brandeis and urged him to rely exclusively on the preemption argument. See Rabban (1983), p. 1343 (quoting Chafee to Dean Acheson, who was Brandeis's clerk at the time); D. Smith (1986), p. 288, n. 3.

108. Chafee (1956), p. 29.

109. See Chafee (1941), pp. 508-9.

110. Chafee (1941), pp. 508-9; Corwin (192oa), p. 55. Corwin's analysis is discussed in chapter 2.

111. Chafee (1941), p. 397. As discussed below, Chafee believed the free-speech claim in Schenck v. United States was properly denied. Chafee also asserted that he supported the Court's decision in Froh-werk v. United States, but only on the ground that an "inadequately prepared record" may have indicated that the "evidence might conceivably have been sufficient . . . [to] satisfy the clear and present danger test." Chafee (1941), p. 83. Chafee may have thought Whitney v. California was correct on technical grounds, but he clearly believed Anita Whitney's conviction in the trial court violated her constitutional free-speech rights. See Chafee (1941), pp. 345-51.

112. See chapters 1 and 2.

113. Chayes (1976), p. 1285.

114. Courts could consider the defendant's state of mind when determining the probability that the defendant's acts would have had harmful consequences. See chapter 3.

115. Chafee (1941), pp. 47-48, 82, 183; Chafee (1956), p. 82. When Chafee first attempted to draw an analogy between the First Amendment and the law of criminal attempt, he did not know that Holmes had made a similar effort in Schenck. Chafee first stated his analogy in 1920, two years before he learned that Holmes had also derived the clear and present danger test from the law of criminal attempt. Chafee (1920a), pp. 213-14. Bogen (1982), p. 100. Nevertheless, this similarity was probably not coincidental. Chafee and Holmes were both familiar with the work of Walter Nelles, a prominent attorney who defended free-speech cases for the National Civil Liberties Bureau and the ACLU. In 1918, Nelles wrote a short book arguing that the Espionage Act incorporated the common law of criminal attempt. Nelles (1918), P. 77. See Chafee (1956), pp. 69-70.

116. Holmes used similar language in Abrams. However, Holmes believed that the trial court had to examine evidence of Abrams's intent in order to establish an otherwise weak connection between the speech in question and the possibility of lawless action; if Abrams had intended to cause lawless conduct, then this would have increased the probability that lawless conduct would have taken place. See chapter 3.

117. Chafee (1941), pp. 47-48, 82.

118. Ibid., p. 175.

119. 301 U.S. 242 (1937).

120. Chafee (1941), p. 397.

121. Ibid.

122. Ibid., pp. 395-97. See D. Smith (1986), p. 3 (quoting Chafee).

123. Chafee (1941), p. 398.

124. D. Smith (1986), p. 3. See Prude (1973), pp. 644-45.

125. Chafee (1941), p. 218.

126. Ibid., p. 319.

127. Ibid., p. 48.

128. Ibid., pp. 81-82.

129. See ibid., pp. 401-9.

130. Whitney, at 380 (Brandeis, J., concurring).

131. Compare Chafee (1941), pp. 349-50 with Whitney, at 379-80 (Brandeis, J., concurring). See generally Van Alstyne (1984), pp. 35-37.

132. See chapter 5.

133. Chafee (1941), p. 84. See chapter 3.

134. Chafee(1941), PP. 42, 44.

135. Ibid., p. 139.

136. Chafee (1956), p. 167; Chafee (1928a), p. 213. See Chafee (1956), p. 220 (Congress may compel testimony for any reason).

137. Chafee (1919a), p. 963.

138. Chafee (1941), pp. 6-7, 167; Chafee (1956), p. 17.

139. Chafee (1956), pp. 89-91; Chafee (19492), p. 894; Prude (1973), p. 651 (quoting Chafee). See Chafee (1941), p. 177 ("the wisdom and policy of a federal sedition law" is "a much more fertile subject of discussion"); Chafee (1965), p. 35; Chafee (1956), p. 180. See generally Prude (1973), pp. 641-42.

However, Chafee's policy arguments were usually legal arguments that had been unsuccessful in court. For example, in 1941, Chafee claimed that his discussion of deportation was based solely on policy considerations. In 1920, he had claimed that the identical positions were constitutional arguments. Compare Chafee (1920a), p. 284, with Chafee (1941), p. 232.

140. Chafee (1949a), p. 895. See Chafee (1941), pp. 170-71; Chafee (192oa), p. 200. For Holmes and Freund, see chapter 3.

141. Chafee (1941), p. 177. See also Chafee (1952), p. 1 (asserting that the First Amendment had little meaning before courts had interpreted it).

142. Chafee (1941), p. 139.

143. Chafee (1928a), p. 53. See Chafee (1949a), p. 894.

144. Chafee (1941), p. 564. See Chafee (1956), p. 101; Chafee (1928a), p. 107; Chafee (1965), p. 38.

145. Prude (1973), pp. 652-54 (quoting Chafee).

146. Chafee (1919a), pp. 957, 959.

147. Chafee (19282), p. 69.

148. Chafee (1920b), pp. 771-72

149. Chafee (1931), p. 338.

150. E. Freund (1904), p. 11; Dewey (1929a), p. 102; Frankfurter (1938), p. 51; Llewellyn (1919), p. 337. For similar observations, see Mason (1955), p. 129, n. 37. (citing sources).

151. Chafee (1928b), p. 98.

152. Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 535 (1949).

153. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 391 (1937).

154. United States v. Carolene Products Co., 304 U.S. 144, 152-53 n. 4 (1938). The precise origins of the Carolene Products footnote are obscure. Most scholars agree that the footnote was probably written by Louis Lusky, Stone's clerk. Alpheus Mason claimed that "the groundwork had been laid in the earlier opinions of Justice Holmes, Justice Brandeis, and Chief Justice Hughes." Mason (1955), p. 129. However, as noted in chapter 3, none of these jurists justified judicial activism in that manner. It is more likely that speculations similar to the footnote were in the intellectual atmosphere at the time when it was written. For a discussion of the origins of the Carolene Products footnote, see Mason (1956), pp. 597-609, 612-27.

155. For Board of Education v. Barnette, see 319 U.S. 624 (1943). For Minersville School District v. Gobitis, see 310 U.S. 586 (1940).

156. Chafee et al. (1940), pp. 13-15, 22-26. For evidence that Cha-fee wrote these particular pages, see D. Smith (1986), pp. 203-4.

157. Chafee et al. (1940), pp. 14-15. For a summary of Chafee's activities promoting this two-tiered interpretation of judicial review, see D. Smith (1986), pp. 199-211.

158. Chafee (1941), pp. 360-61.

159. Ibid., pp. 360-61, 138-39.

160. See chapter 3.

161. Chafee (1941), p. 559.

162. Chafee (1941), p. 560.

163. Chafee (1965), p. 545.

164. Ibid., pp. 547, 471.

165. Chafee (1928a), p. 167.

166. Chafee (1956), p. 107.

167. Ibid., p. 108.

168. Ibid.

169. See chapter 4, nn. 62-64 and accompanying text.

170. Chafee (1965), pp. 500, 628, 545.

171. Chafee (1965), pp. 549, 563. See generally United States v. Associated Press, 326 U.S. 1 (1945).

172. Chafee (1965), pp. 628-29.

173. Ibid., pp. 627-28.

174. Ibid., p. 633. For his full argument against rights of access, see Chafee (1965), pp. 627-33. Because radio licenses were, by the nature of the industry, a scarce resource, Chafee believed that the FCC could require broadcasters to provide access to persons of differing views, although he believed that to be an unwise policy. Ibid., pp. 636-42, 693.

175. See chapter 5.

1. See Frank (1931); Arnold (1962); Arnold (1937).

2. Bell (1988), p. 405. See Purcell (1973), p. 236.

3. See Purcell (1973), pp. 197-217, 235-66; R. Smith (1985), p. 80.

4. Hook (1940), p. 10; Shapiro (1984), p. 543. See Dab] (1956), pp. 22-27. For a general discussion of the various strands of democratic relativism, see Purcell (1973), pp. 205-10.

5. Lipset and Rabb (1978), p. 5; Bell (1988), p. 406. See generally Purcell (1973), pp. 237-39.

6. Parsons (1955), pp. 138-39. See Adorno et. al. (1950), especially pp. 654-726; Emerson (1966), p. 17. For examples of the behavioral disorders that intellectuals thought afflicted McCarthy's supporters, see the essays collected in Bell (1955). For a cogent criticism of these claims, see Rogin (1967).

7. Hook (1940), p. 286; Dahl (1956), p. 66; Dahl (1970), pp. 106-7. See Lipset and Rabb (1978), p. xviii.

8. Abrams v. United States, 250 U.S. 616, 629 (1919) (Holmes, J., dissenting).

9. 376 U.S. 254.

10. See chapter 1.

11. 395 U.S. 444.

12. See especially, Buckley v. Valeo, 424 U.S. 1 (1976).

13. Meiklejohn (1960), pp. 27, 20; Meiklejohn (1961), p. 264. See Meiklejohn (1960), pp. 57, 72.

14. Emerson (1970), p. 5; Emerson (1977), pp. 739-40, 760. See Emerson (1966), p. viii.

15. Emerson (1970), p. 631; Emerson (1966), p. 115. See Emerson (1970), P. 4.

16. Emerson (1966), p. 26; Emerson (1970), pp. 4-5.

17. Meiklejohn (1960), pp. 19-20; Meiklejohn (1961), p. 260.

18. Ibid., p. 76. See Meiklejohn (1961), pp. 255-56; for a discussion of the absolute standard of free speech protection, see pp. 255-66.

19. Meiklejohn (1960), pp. 59-60.

20. Emerson (1981), p. 802.

21. Emerson (1966), p. 59. For Emerson's full protection doctrine, see Emerson (1970), pp. 16-20; Emerson (1966), pp. 59-62; Emerson (1980), pp. 477-80.

22. Meiklejohn (1960), p. 57.

23. Emerson (1966), p. 59.

24. Meiklejohn (1961), p. 255; Meiklejohn (1960), p. 75. See Meikle-john (1961), pp. 253-54; Meiklejohn (1960), pp. 57-60, 79.

25. Meiklejohn (1960), pp. 79, 37, 42.

26. Emerson (1966), pp. 3, 4-15; Emerson (1970), pp. 6-7; Emerson (1977), pp. 740-45; Emerson (1980), pp. 423-28.

27. Emerson (1966), p. 4.

28. Chafee (1949), p. 900. See also Kalven (1960), pp. 15-16.

29. See, e.g., Meiklejohn (1960), p. 42.

30. Chafee (1949a), p. 900; Meiklejohn (1961), pp. 263, 257, 262.

31. Emerson (1966), pp. 14, 59.

32. Emerson (1980), p. 423.

33. See Chafee (1941), p. 149 (discussed in chapter 4).

34. Emerson (1970), p. 489.

35. Emerson (1966), pp. 31, 32.

36. Meiklejohn (1961), p. 256; Meiklejohn (1960), pp. 107-8. See Meiklejohn (1960), pp. 19-20, 86.

37. Emerson (1966), pp. 4-5.

38. Meiklejohn (1960), p. 87.

39. Emerson (1970), pp. 663, 666.

40. Ibid., p. 668.

41. Ibid., pp. 634, 639. See also Emerson (1966), p. 105.

42. Emerson (1970), pp. 638-39.

43. Ibid., pp. 639-40.

44. Levy (1963), p. 309.

45. Cahn (1960), p. 8; Shapiro (1966), p. 93. See also Meiklejohn (1961), pp. 263-64; Emerson (1970), P. 99. For a summary of reaction to Legacy of Suppression, see Levy (1985), pp. xiv-xix.

46. Shapiro (1966), p. 116; Kalven (1988), p. 28; Cahn (1956), p. 480. See McKay (1959), p. 1188; Rostow (1952), pp. 210-24; C. Black (1960), pp. 103-4 ("in many cases, moreover, the wrong complained of is one that amounts to an exclusion from the political process"). See also Kal-ven (1964), p. 221 (generally endorsing Meiklejohn's interpretation of the constitutional meaning of free speech). See generally R. Smith (1985), pp. 103, 106.

47. Rostow (1952), p. 202; McKay (1959), pp. 1184-85, 1191, 1198. Rostow (1952), pp. 202-3. For endorsements of the Carolene Products footnote, see Shapiro (1966), pp. 58-59, 113-17; Mason (1956), pp. 625-28; Lusky (1942), PP. 19-21; C. Black (1960), pp. 110-12, 90-99, 217-21. See generally R. Smith (1985), pp. 81, 89.

48. See generally Lange (1973), pp. 2-3, n. 5 (citing articles discussing mass-media and free-speech problems).

49. See Shiffrin (1983), pp. 1212-13.

50. 341 U.S. 494 (1951).

51. Thornhill v. Alabama, 310 U.S. 88, 102 (1940); Thomas v. Collins, 323 U.S. 516, 543 (1940) (Jackson, J., concurring); Thomas, at 529-30. See Schneider v. State, 308 U.S. 147, 161 (1939) (quoted in chapter 4); Board of Education v. Barnette, 319 U.S. 624, 639 (1943); Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943). See generally McKay (1959), pp. 1223-27 (quoting judicial opinions defending free speech).

52. See especially Dennis v. United States, 341 U.S. 494 (1951); Scales v. United States, 367 U.S. 203 (1961). For general summaries of the Supreme Court's attitudes toward free speech from the 1920s to the 1960s, see Mendelson (1952); Shapiro (1966).

53. Dennis v. United States, at 494, 584 (Douglas, J., dissenting). See Poulos v. New Hampshire, 345 U.S. 395, 423 (1952) (Douglas, J., dissenting); Douglas (1958), p. 41.

54. Breard v. Alexandria, 341 U.S. 622, 650 (1951) (Black, J., dissenting); Hugo Black (1968), p. 49.

55. Garrison v. Louisiana, 379 U.S. 64, 82 (1964) (Douglas, J., concurring); Hugo Black (1968), p. 45.

56. Powe (1974).

57. United States v. C.I.O., 335 U.S. 106, 107 n. 1, 123 (1948); United States v. International Union United Automobile Workers, 352 U.S. 567 (1957). See also United States v. C.I.O., at 106 (Rutledge, J., concurring) (claiming statute was void for vagueness).

58. United States v. International Union United Automobile Work ers, at 567, 596, 598 n. 3 (Douglas, J., dissenting); Douglas (1958), pp. 31-32.

59. New York Times Co. v. Sullivan, 376 U.S. 274-75 (1964); Bren-nan (1965), pp. 18, 10; Kalven (1964), p. 221.

60. New York Times Co. v. Sullivan, at 397 (Black, J., concurring).

61. Ibid., at 301 (Goldberg, J., concurring). See generally R. Smith (1985), p. 198.

62. See Kalven (1964), p. 221.

63. Cohen v. California, 403 U.S. 15 (1971); Tinker v. Des Moines School District, 393 U.S. 503 (1969); New York Times Co. v. United States, 403 U.S. 713 (1971). See also Watts v. United States, 394 U.S. 705 (1969); Bond v. Floyd, 385 U.S. 116 (1966). But see United States v. O'Brien, 391 U.S. 367 (1968) (First Amendment held not to protect persons who protested the draft by burning their draft cards).

64. See Shuttlesworth v. Birmingham, 394 U.S. 147 (1969); Gregory v. Chicago, 394 U.S. 111 (1969); Brown v. Louisiana, 383 U.S. 131 (1966); Cox v. Louisiana, 379 U.S. 536 (1965); Edwards v. South Carolina, 372 U.S. 229 (1963). These and similar cases are analyzed at length in Kal-ven (1965). For other instances where the Court upheld the First Amendment rights of civil rights organizers or protestors, see Street v. New York, 394 U.S. 576 (1969); NAACP v. Button, 371 U.S. 415 (1963); Wood v. Georgia, 370 U.S. 375 (1962); NAACP v. Alabama, 357 U.S. 449 (1958). But see Adderly v. Florida, 385 U.S. 39 (1966) (First Amendment held not to give persons the right to protest on prison grounds).

65. See Brandenburg v. Ohio, 395 U.S. 444, 447, 449 (1971) (overruling Whitney v. California); Watts, at 705, 711-12 (Douglas, J., concurring) (noting that the decision had implicitly overruled several lower federal court decisions handed down during World War I). In these earlier cases, courts held that persons had no constitutional right to insult the president. See also Brandenburg, at 452 (Douglas, J., concur-ring) (suggesting that the Court should overrule Schenck v. United States.

66. 385 U.S. 116 (1966).

67. See also Watts, at 705, 711-12 (Douglas, J., concurring) (noting that persons had been punished for similar hyperbolic threats during World War I).

68. Brandenburg, at 447.

69. Nimmer (1984), p. vii.

70. Kalven (1964), p. 221, n. 125; Emerson (1968), p. 988. See Dorsen and Gora (1983), pp. 28-29.

71. See Cox (1981), p. 6.

72. See Dorsen (1988), pp. 483-84.

73. See, e.g., Downs (1985).

74. See, e.g., Texas v. Johnson, 491 U.S.—, 105 L. Ed. 2d 342, 371 (1989) (Rehnquist, C. J., dissenting).

75. The most famous work in this genre is Charles Beard's An Economic Interpretation of the Constitution (1913), which claimed that concentrated wealth had triumphed over democratic interests from the very beginning of the republic.

76. See, e.g., Jacobson (1980); Burnham (1982); Wolfinger and Ro-senstone (1980); Ferguson and Rogers (1986); Drew (1983); Edsall (1984); Verba and Nie (1972); Piven and Cloward (1989).

77. Lindblom (1977), pp. 5, 194, 202, 356. Robert Dahl expressed similar concerns in Democracy and its Critics.

78. Winter (1973), pp. 27, 3-5. Winter (1971), p. 53. Some conservative scholars praise unregulated campaign spending for less egalitarian reasons. Brice Clagett and John Bolton ([1976], p. 1335) insist that "the wealthy need means to exercise their financial power to defend themselves politically against the greater numbers who may believe that their economic interests militate toward leveling."

79. 391 U.S. 308 (1968).

80. Chafee (1941), p. 23.

81. Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308, 326 (1968) (Douglas, J., concurring).

82. Logan Valley Plaza, at 332-33 (Black, J., dissenting); Bell v. Maryland, 378 U.S. 226, 325 (1964) (Black, J., dissenting).

83. Emerson (1970), p. 679; Shapiro (1966), pp. 148-49 (this comment was not made in the precise circumstances of Logan Valley Plaza).

84. See Fiss (1986), p. 1407; Powe (1983), pp. 243-44.

85. Dorsen and Gora (1983), p. 44; Van Alstyne (1980), pp. 67-68; R. Smith (1985), p. 114; Fiss (1986), p. 1407; Clark v. Community for Creative Non-Violence, 468 U.S. 288, 314 n. 14 (Marshall, J., dissenting).

86. Buckley, at 1, 256-57 (Burger, C. J., concurring). See Gitlow, at 673 (Holmes, J., dissenting).

87. Buckley, at 19. See FEC v. National Conservative PAC, 470 U.S. 480, 493-94 (1985).

88. Buckley, at 48-49. See Citizens Against Rent Control v. Berkeley, 454 U.S. 295-96 (1981); First National Bank v. Bellotti, 435 U.S. 790-91 (1978); Pacific Gas and Electric Company v. Public Utilities Commission of California, 475 U.S. 1,14 (1986).

89. See Wooley v. Maynard, 430 U.S. 705, 713-15 (1977); Board of Education v. Barnette, at 624, 633-42.

90. The relevant portions of the Federal Election Campaign Act Amendments of 1974 are:

(b)(1) . . . no person shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $1,000.

(2) No political committee (other than a principal campaign committee) shall make contributions to any candidate with respect to any election for Federal office which, in the aggregate, exceed $5,000. . . .

(3) No individual shall make contributions aggregating more than $25,000 in any calendar year. . . .

(c) (1) No candidate shall make expenditures in excess of—

(A) $10,000,000, in the case of a candidate for nomination for election to the office of President of the United States. . . .

(B) $20,000,000, in case of a candidate for election to the office of President of the United States;

(C) in the case of any campaign for nomination for election by a candidate for the office of Senator or by a candidate for the office of Representative from a State which is entitled to only one Representative, the greater of—

(i) 8 cents multiplied by the voting age population of the State . . .; or

(ii) $100,000;

(D) in the case of any campaign for election by a candidate for the office of Senator or by a candidate for the office of Representative from a State which is entitled to only one Representative, the greater of—

(i) 12 cents multiplied by the voting age population of the State . . .; or

(ii) $150,000;

(E) $70,000, in the case of any campaign for nomination for election, or for election, by a candidate for the office of Representative in any other State. . . .

(e)(1) No person may make any expenditure . . . relative to a clearly identified candidate during a calendar year which, when added to all other expenditures made by such person during the year advocating the election or defeat of such candidate, exceeds $1,000.

(a)(1) No candidate may make expenditures from his personal funds, or the personal funds of his immediate family, in connection with his campaigns during any calendar year for nomination for election, or for election, to Federal office in excess of, in the aggregate—

(A) $50,000, in the case of a candidate for the office of President or Vice President of the United States;

(B) $35,000, in the case of a candidate for the office of Senator or for the office of Representative from a State which is entitled to only one Representative; or

(C) $25,000, in the case of a candidate for the office of Representative. . . .

88. Stat. 1263-66 (1974). In addition, Congress required that contributions and expenditures be publicly disclosed, established a system of partial federal funding for presidential elections, and set up a commission to monitor compliance with the statute. See 88 Stat. 1263-1304 (1974).

91. Buckley, at 44-45, 24-25, 245 (Burger, C. J., concurring) ("if such restraints can be justified at all, they must be justified by the very strongest of state interests"); National Conservative PAC, at 480, 493; Citizens Against Rent Control, at 290, 294; Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 540-41 (1980); Bellotti, at 765, 786.

92. Buckley, at 25-28. See National Conservative PAC, at 496-97; FEC v. National Right to Work Committee, 459 U.S. 197, 206-11 (1982); California Medical Assn. v. FEC, 453 U.S. 182, 194-95 (1981); Citizens Against Rent Control, at 297.

93. Buckley, at 28.

94. Ibid., at 39-59.

95. Ibid., at 47, 48-49, 55.

96. Ibid., at 49.

97. Bellotti, at 765, 777 See Consolidated Edison Co., at 530.

98. Bellotti, at 788 n. 26. See Austin v. Michigan Chamber of Commerce, —U.S.—58 U.S.L.W. 4371 (1990) (limitations on nonprofit corporate expenditures on behalf of political candidates held constitutional as applied to a nonprofit corporation that solicited funds from for-profit corporations); National Right to Work Committee, at 197 (limitations on corporate expenditures on behalf of political candidates held to be a constitutionally adequate means of preventing corruption). But see FEC v. Massachusetts Citizens for Life, 479 U.S.

238. (1986) (states cannot regulate the expression of nonprofit corporations formed solely for ideological purposes if they do not accept contributions from for-profit corporations).

99. Citizens Against Rent Control, at 290, 297.

100. Ibid., at 297-99.

101. National Conservative PAC, at 480, 495. But see California Medical Assn. v. FEC, at 182 (sustaining limitations on contributions to a multicandidate political committee).

102. National Conservative PAC, at 498.

103. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).

104. Columbia Broadcasting v. Democratic Comm., 412 U.S. 94 (1973) (opinion of Burger, C. J.).

105. Ibid., at 148 (Douglas, J., concurring). Justice Douglas did not take part in the Red Lion decision.

106. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256 (1974).

107. Lloyd Corp. v. Tanner, 407 U.S. 551, 568-69 (1972); Hudgens v. NLRB, 424 U.S. 507 (1976) (overruling Logan Plaza).

108. See Lloyd Corp., at 578 (Marshall, J., dissenting).

109. Pruneyard Shopping Center v. Robins, 447 U.S. 74, 97 (1980) (Powell, J., concurring).

110. Ibid., at 83; see at 94 (Marshall, J., concurring). See also CBS, Inc. v. FCC, 453 U.S. 367 (1981) (upholding a statute that required broadcasters "to permit purchase of reasonable amounts of time . . . by a legally qualified candidate for Federal elective office on behalf of his candidacy").

111. Pacific Gas, at 14.

112. See Pruneyard, at 99-101 (Powell, J., concurring); see also at 95 (White, J., concurring).

113. Hague v. C.I.O., 307 U.S. 496, 515 (1939) (opinion of Roberts, J.). See United States v. Grace (affirming the constitutional right to hand out political pamphlets on the sidewalk outside the Supreme Court). But see Heffron v. International Society for Krishna Consciousness, 452 U.S. 640 (1981) (states have the right to restrict a religious group handing out literature to a specific area on the state fairgrounds).

114. Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45-46 (1983).

115. Ibid., at 49. See Greer v. Spock, 424 U.S. 828 (1976); Cornelius v. NAACP Legal Defense & Ed. Fund, 473 U.S. 788 (1985); Lehman v. Shaker Heights, 418 U.S. 298 (1974); U.S. Postal Service v. Greenburgh Civic Assns., 453 U.S. 114 (1981); City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984).

116. See Cornelius, at 832-33 (Blackmun, J., dissenting); Perry, at 63-66 (Brennan, J., dissenting).

117. See especially U.S. Postal Service, at 144 (Marshall, J., dissenting); Cornelius, at 815 (Blackmun, J., dissenting).

118. Buckley, at 256; Austin, at 4383 (Scalia, J., dissenting). Indeed, Justice Scalia's speech-protective opinions in traditional free-speech cases suggest that he accepts the conservative libertarian interpretation of the First Amendment. See especially Texas v. Johnson, 491 U.S. — (1989) (Scalia, J., concurring) (endorsing the constitutional right to burn the flag).

119. Buckley, at 265 (White, J., dissenting).

120. Bellotti, at 823 (Rehnquist, J., dissenting).

121. For libel, see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (Brennan, J., dissenting); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (Brennan, J., dissenting). For obscenity and offensive language, see FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (Brennan, J., dissenting); Miller v. California, 413 U.S. 15 (1973) (Brennan, J., dissenting); Paris Adult Theater I v. Slaton, 413 U.S. 49 (1973) (Brennan, J., dissenting). For public forum, see Perry, at 37 (Marshall, J., dissenting); U.S. Postal Service, at 144 (Marshall, J., dissenting); Greer v. Spock, at 828 (Brennan, J., dissenting); Community Creative Non-Violence, at 288 (Marshall, J., dissenting). See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (Brennan, J., concurring) (First Amendment grants citizens a right to know certain information); Connick v. Myers, 461 U.S. 138 (1983) (the First Amendment should bar the firing of a governmental employee who passed out questionnaires concerning working conditions in her department); Board of Education v. Pico, 457 U.S. 853 (1982) (the First Amendment limits the right of school boards to remove books from the school library); Wayte v. United States, 470 U.S. 598 (1985) (Brennan, J., dissenting) (the First Amendment should bar the governmental practice of prosecuting only persons who publicly objected to draft registration). See generally Powe (1982), pp. 271-73.

122. See Lloyd Corp., at 551 (Marshall, J., dissenting); Hudgens, at 507 (Marshall, J., dissenting); Pruneyard, at 74, 97.

123. Compare Bellotti, at 765 with Consolidated Edison Co., at 765-Compare Pacific Gas and Electric Company v. Public Utilities Commission of California, 475 U.S. 1 (1986) with Hudgens.

124. Justice Brennan did contribute a one-paragraph addendum to Miami Herald (signed only by Justice Rehnquistl), which asserted that newspapers might have to print replies from persons who proved defamatory falsehood. Miami Herald, at 258-59 (Brennan, J., concurring).

125. Massachusetts Citizens for Life, at 264; Austin, at 4376.

126. Massachusetts Citizens for Life, at 257-58.

127. See Austin, at 4379-80 (Scalia, J., dissenting); Nicholson (1988), p. 605. Although Justice Scalia's criticisms were specifically aimed at Justice Marshall's majority opinion in Austin, Marshall dissented in FEC v. National Conservative PAC, the case holding that individuals could spend unlimited sums of money on behalf of political candidates. Justice Brennan, however, voted with the majority in that case.

128. Ely (1980), p. 101 (quoting Hans Linde).

129. Ibid., p. 87.

130. Ibid., pp. 106, 76.

131. Ibid., p. 104.

132. Ibid., pp. 110-11.

133. Ibid., pp. 108-9.

134. Ibid., pp. 105-16 (primarily discussing the relationship between free speech and lawless conduct).

135. For other contemporary theorists who emphasize the relationship between judicial review and democratic processes but fail to discuss the constitutional relationships between free speech and private property, see Bork (1971); Lusky (1975).

136. Dworkin (1978), p. 126. See generally Graber (1989), pp. 88-89.

137. Michelman (1979).

138. See Dworkin (1985); Dworkin (1978); Perry (1982).

139. See Gunther (1985), p. Ixiv.

140. See, e.g., Blasi (1977), pp. 637-38, 645-46; Van Alstyne (1984), pp. 126-27, n. 90; Redish (1984), pp. 112-13.

141. Karst (1975), PP. 64-65; Baker (1978), p. 1040.

142. See Schauer (1982); Bollinger (1986); Kalven (1988); Downs (1985); Greenawalt (1980); Lewis (1983); Neubourne (1988).

143. Blasi (1985), pp. 449-50, 477-80.

144. Emerson (1980), p. 461.

145. Emerson (1981), p. 795; Emerson (1980), p. 462.

146. Emerson (1980), pp. 480-81.

147. Ibid., p. 481.

148. Emerson (1981), p. 799.

149. Ibid., p. 810.

150. Ibid., p. 827. For similar thoughts, see Carter (1984); Pool (1983).

151. Emerson (1981), p. 823.

152. See Powe (1987a), pp. 250, 281 n. 3; Fleishman and McCorkle (1984), pp. 237-38; Nicholson (1988), pp. 590-92, 606-7; Wright (1982), pp. 637, 642.

153. Dorsen (1988), p. 492; Dorsen and Gora (1983), p. 44.

154. Dorsen and Gora (1983), pp. 43-44.

155. Haiman (1981); Neubourne (1988), pp. 576-77.

156. See Dorsen (1984); American Civil Liberties Union (1985).

157. Dorsen (1984), p. xv (quoting Paul Freund). See American Civil Liberties Union (1985), pp. 288, 292.

158. Creating a judicially enforceable minimum standard of living, for example, would not resolve all the problems that are created by limited access to expensive communications technology.

159. See Powe (1987a), p. 253; Fiss (1987), p. 785; Fiss (1986), pp. 1407,1410.

160. Powe (1987b), p. 382 (quoting D. Anderson [1983], p. 522); Pool (1983), p. 3; Kalven (1967), p. 23.

161. Powe (1987b), p. 363; Fleishman and McCorkle (1984), p. 238. See Powe (19872), p. 250.

162. Baker (1982), p. 651.

163. Fleishman and McCorkle (1984), p. 242; Redish (1971), pp. 910-11.

164. Powe (1983), p. 281. See also Winter (1973), pp. 18-19; Winter (1971), p. 60.

165. Redish (1971), p. 915; Fleishman and McCorkle (1984), p. 242. See Kalven (1967), p. 47. See also Powe (1987b), pp. 374-80 (suggesting some doubts about the chilling effect argument).

166. Polsby (1977), p. 43; Powe (19872), pp. 6, 256. See also Winter (1973), p. 13; Winter (1971), pp. 45-46, 61.

167. Baker (1982), p. 651; Powe (1983), p. 281; Fleishman and McCorkle (1984), p. 217. See Redish (1971), pp. 900-901.

168. Powe (1983), p. 281; Redish (1971), p. 933. See Fleishman and McCorkle (1984), p. 238.

169. Powe (1983), p. 282. See Fleishman and McCorkle (1984), pp. 275-78; Polsby (1977), p. 42.

170. Powe (1983), p. 283; Baker (1982), p. 651; Fleishman and McCorkle (1984), p. 296. See Dorsen (1988), p. 493.

171. Fieishman and McCorkle (1984), pp. 294-95. See Powe (1983), pp. 282-83; Redish (1971), p. 903.

172. See Chevigny (1981), pp. 225-26; Fiss (1987), p. 792.

173. Emerson (1981), p. 818; Buckley, at 292-94 (opinion of Rehnquist, J.). See Fleishman (1975), p. 897.

174. Wright (1976), p. 1005; Cox (1981), p. 86; Nicholson (1988), p. 606; Wright (1982), pp. 635-36, 609; Carter (1984), p. 604. See Leventhal (1977), p. 373; Fiss (1986), p. 1424; Barron (1967), p. 1678.

175. Rosenthal (1972), p. 21. See P. Freund (1972), p. 72; Cox (1981), pp. 76-77; Wright (1976), p. 1019.

176. Nieholson (1974), p. 828; Wright (1982), pp. 621-22 (quoting Rosenthal [1972], p. 40). See Leventhal (1977), p. 371; Barton (1967), p. 1647.

177. Nicholson (1988), pp. 597-98; Fiss (1986), p. 1413; Barton (1967), P. 1643; Wright (1982), p. 625. See Chevigny (1981), pp. 219-20; Carter (1984), p. 582.

178. Wright (1976), p. 1007.

179. Meiklejohn (1960), p. 26. See Barron (1967), p. 1653; Leventhal (1977), p. 360; Wright (1982), p. 639.

180. See Rosenthal (1972), p. 12; P. Freund (1972), p. 71; Wright (1982), pp. 639-40; Cox (1981), p. 720.

181. P. Freund (1972), p. 72; Nicholson (1974), p. 845. See Wright (1982), p. 639; Leventhal (1977), pp. 361-62.

182. Kovacs v. Cooper, 336 U.S. 77, 102 (1949) (Black, J., dissenting).

183. Kovacs, at 104 (Black, J., dissenting); Dorsen and Gora (1983), pp. 43-44.

184. For similar objections, see Karst (1975), p. 40.

185. Winter (1971), p. 52.

186. Bell (1988), p. 105 (quoting Nicholas Biddle).

187. Wright (1982), p. 631.

1. See chapters 4 and 5.

2. Shapiro (1978), pp. 197, 201-2; Shapiro (1983), p. 223; Truman (1962), pp. 479, 494-97; Peltason (1955), pp. 43-54; Vose (1972), pp. 329-39. See also Stumpf (1984), p. 536.

3. Chafee (1941), pp. 357-60. See Rabban (1981), pp. 557-59; Murphy (1972), pp. 25, 30-37.

4. Shapiro (1978), pp. 192-93.

5. Skinner (1974), p. 299; J. White (1984), p. 6.

6. Skinner (1974), p. 300. See Gordon (1984), p. 101; R. Smith (1988), p. 88; Tulis (1987), pp. 15-17.

7. Levinson (1988), p. 156 (citing Geertz [1973]). See R. Smith (1988), p. 98 (quoting Gordon [1984], p. 101).

8. Skowronek (1982), p. 285.

9. Rorty (1989), p. 56; see also pp. 41-42.

10. See R. Smith (1988), p. 91.

11. Skinner (1974), p. 287. See J. White (1984), pp. 278-84; Flath-man (1989), pp. 29-30.

12. Of course, pragmatism and sociological jurisprudence were themselves fashioned out of the intellectual resources of late nine-teenth-century conservatism. See Eric Goldman (1955).

13. See, e.g., Tribe (1985); Perry (1982); Dworkin (1986); Ackerman (1984); Posner (1977); Epstein (1985); Michelman (1973).

14. 14. Graber (1988), pp. 339-40 n. 34.

15. See Graber (1989).

16. See chapter 5.

17. Rae (1981). For a more general attack on the use of "gross concepts" in political thought, see I. Shapiro (1989).

18. Rawls (1971); Dahl (1989).

19. Walzer (1984), p. 321.

20. See Walzer (1983), pp. 86-91, 97-108,135-48, 236-37.

21. See Fishkin (1984), pp. 757-58.

22. Hamilton, Madison, and Jay (1961), p. 354.

23. See chapter 5.

24. Arendt (1965), p. 12. See Arendt (1958), pp. 26-27.

25. J. White (1984), p. 282; Rorty (1989), p. 67. See Rorty (1989), pp. 51-52, 60-61; Habermas (1979), p. 186; W. Wilson (1981), p. 144. See also R. Smith (1989), p. 75 (noting that both proponents and skeptics of moral reality may "aspir[e] to create a community of rationally inquiring and self-governing citizens").

Obviously, I will have to defend this point at length in the future work promised above.

26. Walzer (1983), pp. 304-5.

27. Ibid., p. 309.

28. Walzer (1964), p. 321.

29. Ibid., p. 318; Walzer (1983), p. 304.

30. See Cohen v. California, 403 U.S. 15 (1971).

31. See chapter 3.

32. See chapter 4.

33. Walzer (1981), pp. 396-97.

34. I would similarly argue that unions and foreigners have no constitutional free-speech rights, although the Constitution prohibits legislation that discriminates among citizens who wish to use unions or foreigners as vehicles for their own speech. Thus, while a Russian scholar may have no right to give a speech in the United States, an American group may have a First Amendment right to invite such a person to give a talk.

Minors and aliens qualified for citizenship have some free-speech rights by virtue of their entitlement to a share of political power in the future. Because they are not yet citizens, however, they may not enjoy the full protection of the First Amendment. This is not to say that minors and aliens have the same free-speech rights.

35. Actually, the last clause of this standard might read "as long as all members of the community can afford to make a similar investment in politics." However, this would give elected officials the power to regulate virtually all political activities because some members of our community cannot afford to make any investment in politics. The interpretive principle that best justifies an "average member of the community" rule is the same used by the Fairy Queen in Iolanthe when she declared, "But I cannot slaughter the whole company" after discovering that all her minions had incurred the death penalty by marrying mortals.

The need for this modified standard reveals the fundamental unconstitutionality of poverty in any affluent democratic society.

36. See Buckley v. Valeo, 424 U.S. 1 (1976); FEC v. National Conservative PAC, 470 U.S. 480 (1985).

37. This rule might be modified if, because of scarcity, a similarly sized group had no access to the airwaves.

38. See Dombrowski v. Pfister, 380 U.S. 479 (1965).