FREE SPEECH AND SOCIAL CONFLICT: 1909-1917
In the fall of 1909, Elizabeth Gurley Flynn and other leaders of the Industrial Workers of the World (IWW) visited Missoula, Montana, to organize the region's migratory laborers Due to the workers' dispersion across mining and logging camps, the Wobblies focused their efforts in key cities like Missoula, where laborers gathered between jobs Missoula was also home to fraudulent "employment agencies" that charged fees to guarantee jobs for out-of-town workers However, these agencies often left workers stranded, as they would arrive at job sites only to find no positions available or to be dismissed shortly after.
The Industrial Workers of the World (IWW) has been the subject of numerous insightful studies, including Paul Frederick Brissenden's contemporary account, "The I.W.W.: A Study of American Syndicalism" (1919) For a more recent perspective, refer to volume 4 of Philip S Foner's "History of the Labor Movement in the United States," which offers valuable insights into the IWW's impact on labor history.
United States, supra note 21, is particularly valuable, as is Melvin Dubofsky's We
Shall Be All: A History of the Industrial Workers of the World (2d ed 1988) For an excellent source on the free speech fights, see PHILIP S FONER, FELLOW WoRKERs
AND FRIENDS: I.W.W FREE-SPEECH FIGHTs AS TOLD BY PARTICIPANTS (1981)
40 See FLYNN, supra note 20, at 103
566 [Vol 40:557 explanation soon after arriving 4 2 This practice guaranteed a large pool of unemployed laborers from which the mining and logging camps did their actual hiring.'
In a series of impactful speeches, Flynn and fellow organizers rallied disgruntled workers, many eager to join the Wobblies The powerful logging and mining interests in Missoula perceived this movement as a significant threat, leading to the swift enactment of an ordinance that banned street speaking Consequently, most original IWW organizers, except for Flynn and a few others, were arrested and sentenced to fifteen days in jail Reflecting on these events, Flynn noted that those who remained strategized on mass tactics for free speech fights, with Missoula being one of the pioneering examples.
The IWW's plan for nonviolent protest aimed to overwhelm local courts and jails by having members deliver a simple speech, starting with "Fellow workers and friends," at busy street corners This brief greeting often led to their immediate arrest, as the Wobblies sought to create a situation where police would be forced to cease enforcement of the ordinance due to the sheer number of arrests IWW leaders believed that success in these free speech fights was essential for recruiting new members, as access to public spaces for speaking and gathering was crucial As one organizer noted, the streets served as the Wobblies' "only hall."
42 See 4 FONER, supra note 21, at 177-78
44 See FLYNN, supra note 20, at 103
48 See 4 FONER, supra note 21, at 172-75 (providing a brief description of the ideology and tactics of the Wobblies' free speech fights).
The IWW utilized street speaking as a strategy to counteract negative media portrayals and raise funds for strike efforts through the distribution of literature In the September 30, 1909, edition of the Industrial Worker, IWW members were urged to reclaim the streets of Missoula Upon arrival, volunteers were directed to the locations of previous arrests, where they would stand on soapboxes to speak If not immediately arrested after a brief greeting, they would either improvise or read from texts Flynn noted that some speakers experienced stage fright, prompting the distribution of copies of the Bill of Rights and the Declaration of Independence to help them read confidently while anxiously glancing at the police.
The Missoula County Jail soon was packed with Wobblies 5 "
In a strategic move to impose financial strain on the city, speakers intentionally arranged for their arrests before dinner, leading to additional costs for the city in providing meals As the jail reached capacity, the city resorted to accommodating prisoners in a temporary cell located in the basement of the Missoula fire station The situation escalated when horse excrement began seeping through the floorboards, prompting the inmates to vocally protest through song and speech, which disrupted court proceedings and irritated guests at Missoula's top hotel.
The conflict in Missoula drew national publicity, and a num- ber of public figures visited the city, including Senator Robert
La Follette of Wisconsin, who delivered an address condemning
53 Id (quoting a statement attributed to IWW worker Grant Youmans).
55 See id at 176 (citing THE INDUSTRIAL WORKER, Sept 30, 1909).
59 See 4 FONER, supra note 21, at 176-77.
61 See FLYNN, supra note 20, at 104.
Under pressure from taxpayers worried about the costs of enforcing the street speaking ban and the negative publicity it created, Missoula officials decided to drop all cases against the protesters.
Following their success in Missoula, the Wobblies launched free speech campaigns in key western cities, including Spokane, Washington; Fresno, California; and Aberdeen, South Dakota, while also conducting smaller, effective protests in Walla Walla, Washington, and Minot, North Dakota Each campaign mirrored the strategy used in Missoula, with protesters eager to face arrest, as one Wobbly expressed, "We want to get arrested We'll flood the jail, and the county farm and any other place they want to send us to."
The free speech tactics employed by the Wobblies, while effective, led to divisions within the IWW movement The organization prioritized free speech as a practical strategy to secure public access and generate financial support from sympathizers, rather than as a fundamental constitutional right Some members expressed concern that the emphasis on free speech was overshadowing the broader objectives of industrial unionism, especially when non-labor groups joined their protests.
63 See 4 FONER, supra note 21, at 177.
64 See generally id at 177-213 (providing a thorough historical account of free speech fights in a number of cities in the Western United States).
65 See BRISSENDEN, supra note 39, at 365 (providing a partial list of 24 free speech fights after Missoula).
66 4 FONER, supra note 21, at 174 (quoting an IWW member's comments to a Kansas City Star reporter in 1911).
The emergence of organizations like the Free Speech League highlights a growing emphasis on the right to free speech, often viewed as an intellectual pursuit However, this focus has sparked criticism among some IWW members, who argue that these free speech battles distract from the union's core mission of worker organization, with one writer lamenting that they are "fighting the bull instead of the boss." This tension raises important questions about the balance between advocating for free speech and maintaining the primary goal of labor organization.
In 1912, San Diego's long-standing tradition of allowing public speech on "Soapbox Row" faced a significant challenge as the city council, concerned about the growing influence of the IWW, enacted an ordinance that effectively banned street corner meetings under the pretext of traffic regulation This prompted the IWW to initiate a free speech fight, leading to the arrest of forty-one activists on the ordinance's first day The situation escalated with further arrests, culminating in a police sweep targeting all "vagrants," regardless of their adherence to the new law.
The San Diego free speech fight turned into the longest and bloodiest of the IWW free speech campaigns."' The initial stages
73 Id at 211 (quoting W.I Fisher, Soap-Boxer or Organizer, Which?, INDUS. WORKER, June 6, 1912).
Theodore Schroeder's "Free Speech for Radicals" provides an in-depth look at the San Diego free speech fight, detailing the events and significance of this pivotal moment in history Additionally, Foner's work elaborates on important encounters during the Industrial Workers of the World (IWW) free speech struggles in San Diego, highlighting the broader implications of these conflicts for free speech advocacy.
75 See 4 FONER, supra note 21, at 194.
In San Diego, off-duty policemen engaged in brutal vigilante raids against prisoners, subjecting them to severe beatings while forcing them to "run a gauntlet" in the desert Ben Reitman, who was with Emma Goldman for a speaking event, narrowly escaped death after being kidnapped and tortured in this violent climate The situation escalated to the point where President Taft considered deploying federal troops due to unfounded fears among local businessmen that 10,000 armed Wobblies were about to seize the city An editorial in the San Diego Tribune captured the intense anxiety felt by the business community at the time.
The Wobblies contribute nothing to society and are seen as a burden, akin to waste that should be discarded Their existence is viewed as detrimental, suggesting that their removal would benefit the greater human economy.
Following weeks of escalating violence, the intensity of the conflict began to subside, leading to a prolonged stalemate between the Industrial Workers of the World (IWW) and San Diego officials, with neither side indicating a willingness to back down Despite the deadlock, the Wobblies remained committed to their cause, insisting on an uncompromising fight for absolute and unrestricted free speech Over time, the city's determination to uphold the street speaking ban started to weaken, resulting in the release of some individuals detained for exercising their right to free speech.
82 For eyewitness accounts of vigilantism in San Diego, see FONER, supra note
83 See RICHARD DRINNON, REBEL IN PARADISE: A BIOGRAPHY OF EMMA GOLDMAN 134-36 (1961)
WAR AND PROPAGANDA
In April 1917, America's involvement in the European conflict intensified nativist sentiments, prompting the Wilson administration to initiate a large-scale propaganda effort This campaign was organized by the newly established Committee on Public Information (CPI), which aimed to shape public perception and rally support for the war.
114 1 THE MESSAGES AND PAPERS OF WOODROW WILSON 150 (Albert Shaw ed., 1924).
America's domestic experience during the First World War is extensively documented, highlighting significant political repression during this period Notable works such as Robert Justin Goldstein's "Political Repression in Modern America: From 1870 to the Present" and Donald Johnson's research provide in-depth insights into these historical events.
LENGE TO AMERICAN FREEDOMS: WORLD WAR I AND THE RISE OF THE AMERICAN CIV-
IL LIBERTIES UNION (1963); DAvID M KENNEDY, OVER HERE: THE FIRST WORLD WAR AND AMERICAN SOCIETY (1980); HENRY F MAY, THE END OF AMERICAN INNOCENCE:
A STUDY OF THE FIRST YEARS OF OUR OWN TIME 1912-1917 387-98 (1959);
During World War I, many states prohibited the teaching of German, labeling it as a language that promotes autocracy and hatred In Iowa, a local politician even accused the majority of German language teachers of being traitors As a result, German-sounding terms were replaced with patriotic alternatives, such as "liberty cabbage" for "sauerkraut." This sentiment reflected a broader effort to eliminate any ties to old-world culture, encapsulated in the slogan "one hundred percent Americanism." An unusual example of this was seen in a ritual at Henry Ford's school for immigrants, where graduating students donned their native attire before emerging in identical American clothing, each carrying a small American flag.
The Committee on Public Information (CPI), also known as the Creel Committee, played a crucial role during World War I, as detailed in James R Mock and Cedric Larson's "Words That Won the War." Established to combat a perceived, highly-organized German propaganda campaign, the CPI aimed to influence American public opinion Concerns about the effectiveness of German propaganda led to exaggerated fears throughout the war, highlighting the significant impact of information dissemination on national sentiment.
In 1917, muckraker George Creel led the Committee on Public Information (CPI), which promoted films like "The Kaiser" and "The Beast of Berlin" to highlight German atrocities The CPI also placed advertisements in popular magazines encouraging citizens to report anyone who spread pessimistic narratives or undermined the war effort Creel aimed to ensure that every piece of propaganda effectively reached its intended audience.
During the era of intense patriotism, dissenters questioning America's involvement in the war faced severe backlash from the media and threats of violence Even figures like Arthur Woods shifted their stance on free speech amid the conflict In the summer of 1917, organizations like the American Defense Society publicly condemned Woods for his views Additionally, General John Pershing, in a November 1917 cable to the War Department, attributed the Italian Second Army's defeat to German propaganda, which he believed had a detrimental impact similar to that which had led to Russia's downfall To combat such propaganda and protect American morale, Pershing urged the government to utilize counter-propaganda through religious and media channels whenever possible.
118 See Rabban, Free Speech Fights, supra note 16, at 1098 n.281 (citing JOHN A. THOMPSON, REFORMERS AND WAR: AMERICAN PROGRESSIVE PUBLICISTS AND THE FIRST
WORLD WAR 16-17 (1987) (describing Creel as a former "muckraking" journalist and editor)).
119 See MOCK & LARSON, supra note 117, at 151-52.
120 Committee on Public Information, Spies and Lies, SATURDAY EVENING POST, reprinted in MOCK & LARSON, supra note 117, at unnumbered page opposite 64.
121 COMMITTEE ON PUBLIC INFORMATION, THE CREEL REPORT: COMPLETE REPORT
OF THE CHAIRMAN OF THE COMMITTEE ON PUBLIC INFORMATION 2 (1920) For Creel's own account of the committee's work, see GEORGE CREEL, How WE ADVERTISED AMERICA (1972).
During World War I, the Industrial Workers of the World (IWW) faced significant repression, exemplified by the brutal lynching of organizer Frank Little in Butte, Montana, who had previously championed free speech in Missoula Vigilantes kidnapped and murdered him, highlighting the extreme measures taken against dissenters Additionally, cities implemented "slacker raids," targeting men of draft age who could not present their registration cards, reflecting the intense atmosphere of suspicion and control during the war For a detailed account of these raids, see Joan M Jensen's work.
123 See POLENBERG, supra note 15, at 57
124 Of course, the term "citizens' groups" is misleading Although the patriotic so-
WILLIAM AND MARY LAW REVIEW
In August 1917, pressure mounted on York City Mayor John Mitchell due to violent incidents against pacifist speakers and the arrest of a protester opposing pro-German comments at a Friends of Irish Freedom meeting The American Defense Society threatened to form vigilante groups to confront disloyal street speakers if the city did not take action Amid this turmoil, Theodore Roosevelt publicly called for the arrest of those criticizing the American war effort, prompting Mayor Woods to reconsider his lenient stance on public dissent Ultimately, Woods acknowledged the need for a firmer response to the growing unrest.
"the changed conditions" of wartime dictated harsher policies.' l '
Woods emphasized that free speech should not be a cover for sedition, prompting Mayor Mitchell to instruct him to suppress treasonous speech in public In response, Woods's office released a statement revealing that many organizations, which claimed to be grassroots during the war, were actually funded by prominent American business leaders like T Coleman DuPont, Henry C Frick, J.P Morgan, and John D Rockefeller According to Robert K Murray in "Red Scare: A Study in National Hysteria, 1919-1920," the true motives of these patriotic societies often diverged from their stated objectives, as their patriotism was closely linked to the protection of private property and the preservation of economic conservatism.
125 See Roosevelt Enters Fight on Sedition, N.Y TIMES, Aug 18, 1917, at 6.
126 See Crowd Beats Soldiers' Critic, N.Y TIMES, Aug 5, 1917, at 7
127 See Moffet Arrested for Street Protest, N.Y TIMES, Aug 5, 1917, § 1, at 19; see also German Chased by Angry Patriots, N.Y TIMES, Aug 14, 1917, at 1 (de- scribing another incident of mob violence).
128 See Roosevelt Enters Fight on Sedition, supra note 125, at 6.
130 See Disloyal Preaching Safe Under the Law, N.Y TIMES, Aug 22, 1917, at 4 (publicizing Woods's letter to Roosevelt).
132 POLENBERG, supra note 15, at 57 & n.24 (quoting Woods's reply to Roosevelt on Aug 21, 1917).
133 Treason and Free Speech, N.Y TIMES, Aug 25, 1917, at 6
In Volume 40, page 557, it is noted that 578 individuals are misusing their right to free speech to incite disorder, potentially undermining the perception of unity among the American people regarding the war effort The statement emphasizes that such actions, driven by ulterior motives, will not be tolerated.
During the summer of 1917, the Department of Justice established the War Emergency Division to enforce the Espionage Act and related wartime laws, reflecting a deeper consideration of free speech issues President Wilson appointed John Lord O'Brian, a notable attorney from Buffalo with a background in the New York State Assembly and as U.S Attorney for the Western District of New York under Theodore Roosevelt, to lead the division Despite being a lifelong Republican and having supported Wilson's opponent in the 1916 election, O'Brian maintained a generally liberal perspective on civil liberties.
134 End of Street Sedition, N.Y TIMES, Aug 31, 1917, at 18
A New York Times editorial commended the city's measures, stating that the public is weary of tolerating "free speech" that aligns with treasonous sentiments and supports adversaries The editorial warned that a time would come when pro-German speakers would face risks for voicing their disloyal opinions publicly.
During the war, the notion that "free speech" for radicals equated to treason gained significant traction A Princeton University professor of International Law argued that the term "free speech" was often misused and did not apply to "pacifist agitators," who he believed were merely rejecting the majority's will—an act intolerable in a democracy He emphasized that there could be no tolerance for disloyal citizens, especially when their fellow countrymen were sacrificing their lives for a cause deemed just and righteous by the nation.
The Espionage Act of 1917 penalized deliberate obstruction of the military draft, as well as actions that led to insubordination, disloyalty, mutiny, or refusal to perform duty It also addressed the dissemination of false statements regarding the armed forces.
137 See POLENBERG, supra note 15, at 29.
139 See JOHN LORD O'BRiAN, THE REMINISCENCES OF JOHN LORD O'BRIAN 220-23
140 Later in his life, O'Brian was one of the earliest and most influential critics ofMcCarthyism See, e.g., JOHN LORD O'BRIAN, NATIONAL SECUIrY AND INDIVIDUAL
In the William and Mary Law Review, it is noted that O'Brian, alongside his chief assistant Alfred Bettman, aimed to ensure that the country's wartime efforts were conducted with minimal disruption to individual liberties.
THE MAKING OF AMERICA'S "FIRST FREEDOM
In the 1920s, the understanding of free speech evolved significantly, transitioning from a tool for political agitators like Emma Goldman and the IWW to a means of promoting post-war American democracy and mitigating radicalism This new perspective emphasized free speech as a safety valve for political discontent, contrasting it with the intolerance for dissent seen in Russian Bolshevism and Italian fascism, thus highlighting a key distinction between American democracy and other political systems Additionally, it recognized that free speech could serve to maintain the consent of the powerless by offering a seemingly effective yet ultimately limited avenue for power Moreover, it acknowledged that access to the "marketplace of ideas" was uneven, with those equipped with information technologies wielding significant influence over public opinion.
During this period, influential progressive magazines like The New Republic and The Nation played a crucial role in shaping social thought Established in 1914, The New Republic was recognized as a "pragmatic" journal focused on uncovering new ideas and perspectives.
344 Letter from Oliver Wendell Holmes, Justice, U.S Supreme Court, to Sir Fred- erick Pollock (Dec 14, 1919), reprinted in 2 HOLMES-POLLOCK LETTERS, supra note
345 See MARK A GRABER, TRANSFORMING FREE SPEECH: THE AMBIGUOUS LEGACY
OF CIVIL LIBERTARIANISM 236 n.3 (1991) (describing The Nation as a "leading intel- lectual weekly in the late nineteenth century").
The William and Mary Law Review featured prominent contributors such as Herbert Croly, Walter Lippmann, Jane Addams, Walter Weyl, and John Dewey, all of whom championed the progressive ideal of addressing social issues through informed government policies Christopher Lasch noted that these thinkers were exceptionally skilled in articulating the potential for social control, reflecting a deep commitment to the notion of social management The Nation emerged as a significant competitor to this discourse.
The New Republic, under the ownership and editorial guidance of Oswald Garrison Villard, grandson of the abolitionist William Lloyd Garrison, aligned with The Nation in its critical stance against government repression during the Red Scare Together, they played a pivotal role in shaping the foundational principles of America's emerging free speech ideology.
The American Civil Liberties Union (ACLU) significantly influenced the promotion of free speech rights post-war, leading to two key outcomes Firstly, the ACLU framed free speech as a crucial means for achieving meaningful economic and political progress, highlighting that the real obstacle to equality was the denial of civil rights, thus linking the fight for equality with civil rights advocacy Secondly, by defining free speech as an abstract "right," the ACLU obscured the social context from which this right emerged, allowing it to be appropriated by various groups for diverse purposes, including the promotion of specific cultural narratives.
346 CHRISTOPHER LASCH, THE NEW RADICALISM IN AMERICA: THE INTELLECTUAL AS
A SOCIAL TYPE 183 (1965) For a good general description of the aims and philoso- phy of The New Republic, see id at 181-224.
350 See generally David W Noble, The New Republic and the Idea of Progress, 1914-1920, 38 MISs VALLEY HIST REV 387 (1951) (explaining the emergence of a consciousness about free speech issues in The New Republic)
351 See generally Nadine Strossen, In the Defense of Freedom and Equality: The American Civil Liberties Union Past, Present, and Future, 29 HARV C.R.-C.L L. REV 143 (1994) (examining different critiques of the ACLU)
608 [Vol 40:557 trayed existing hierarchies of power as natural and just features of the American democratic system 352
If any one source of ideas had the greatest impact, however, it was Zechariah Chafee's book, Freedom of Speech 353 Published in
1920, Freedom of Speech included revised versions of Chafee's earlier writings, as well as new material 3 54 Although the book is cited most often by traditional scholars for its doctrinal advances and by revisionist scholars for its disingenuous reinterpretation of the "clear and present danger" test, the text demonstrates that Chafee was as preoccupied with the social and ideological functions of free speech as he was with matters of legal doc- trine 355 Chafee's book reverberates with the themes of social control, dissipation of unrest, maintenance of popular consent, and the protection of private property 356
This section of the Article draws on these and other sources from the period to describe four basic components of America's
"first freedom"-ideas that gained clarity and ultimately co- alesced into a unified vision of American-style free speech in the1920s.
Free Speech as Safety Valve
The events of 1919-20 reinforced the "safety valve" theory, suggesting that tolerance of radical speech reduces the chances of radical action Amid widespread anti-Bolshevik hysteria, publications like The New Republic and The Nation emphasized the risks associated with political repression.
352 See, e.g., d at 157 (noting "the ACLU's unique mission to defend all rights neutrally, for all people" regardless of their agenda).
353 See ZECHARIAH CHAFEE, JR., FREEDOM OF SPEECH (1920); see also GRABER, su- pra note 345, at 122 (describing Freedom of Speech as the "Bible on civil liberties questions").
354 See GRABER, supra note 345, at 123
To understand the meaning of free speech, it is beneficial to look beyond purely judicial discussions and consider the historical context of constitutional clauses, as well as the role that free speech plays in social and political life.
357 See, e.g., Danger Ahead, 108 NATION 186 (1919); Freedom of Speech: Whose Concern?, 18 NEw REPUBLIc 102 (1919)
On February 8, 1919, shortly after Mayor Ole Hanson brought federal troops to Seattle, The Nation highlighted the ongoing transformation of the nation's thoughtful working class into radical activists Despite its opposition to socialist ideologies, the publication warned that repression would only exacerbate this trend Citing the radical movements sweeping Europe, it cautioned that the United States is not immune to such upheaval The article urged government officials to recognize the radicalizing consequences of their repressive actions, concluding with a plea for those in power to reconsider their approach before it is too late.
The New Republic emphasized the importance of political tolerance, cautioning conservatives against the dangers of intolerance and highlighting that radicals had valid reasons to oppose repressive policies In its article "The Call to Toleration," the journal warned that such policies had historically led to the downfall of Czarist Russia and could result in similar consequences in America if left unchecked The article noted that many Americans were beginning to view violent speech not as a harmless outlet for frustration but as a harmful and effective means of inciting real violence.
358 Danger Ahead, supra note 357, at 186
The most significant threat to social order today stems from those who deny the right to free speech, rather than from groups like Socialists or the I.W.W.
In a significant article published in The Nation, Frederic Almy highlighted the perils of censorship, referencing the recent attempt by Max and Crystal Eastman to address critical issues such as free speech, the withdrawal from Russia, and the release of political prisoners in Buffalo, New York Despite being prevented from speaking by the Buffalo police, their efforts resonated with the audience, resulting in nearly three thousand dollars raised in support of their cause.
"It might be profitable for them to subsidize the police," Almy wrote Id
363 Freedom of Speech: Whose Concern?, supra note 357, at 102
364 See The Call to Toleration, supra note 335, at 361
The Brandeis Gambit serves as a catalyst for violence, suggesting that concrete beliefs can incite revolutionary actions more effectively than ambiguous appeals to the working class This atmosphere of intolerance and blind faith in force may lead to a devastating class revolution, driven by rampant anger and ignorance in society.
In a 1920 Century magazine article, the author explored the metaphor of the safety valve, arguing that radical ideas pose less danger when expressed than when suppressed, similar to how germs thrive in darkness but perish in sunlight Citing Justice Holmes, the piece likened radical thoughts to champagne, suggesting that exposure to the air prevents them from becoming stale The author warned that repression leads to political and social suicide, fostering revolution and creating a buildup of anger akin to a dam ready to burst This suppression often drives passions underground, only to resurface with greater intensity later Notably, the author identified as a conservative reliant on the existing economic order, emphasizing the necessity of allowing radical ideas to surface for societal stability.
"conservatives have more at stake than radicals in the preserva- tion of free speech." 74
Zechariah Chafee certainly agreed with this description of the conservative viewpoint 7 6 Parts of Freedom of Speech almost
368 Glenn Frank, Is Free Speech Dangerous?, 100 CENTURY 355, 356 (1920)
375 For a description of Chafee's aristocratic leanings, see SMITH, supra note 290;
In his analysis, Chafee likened the societal tensions of 1920s America to those faced by a feudal king during a peasant rebellion, emphasizing the growing rift between the 'haves' and 'have-nots.' He noted that changing economic and social dynamics had dismantled traditional hierarchies, leading to a newfound awareness of the power of unskilled labor Chafee warned that these forces could unravel the social and economic fabric of society, advocating for preventive measures against potential revolutions He argued that overt repression was ineffective, drawing parallels to Russia's last Czar, and suggested that radicalism, if stifled, would merely find alternative outlets Instead of suppression, he proposed a strategy that involved carefully managing radical speech while decisively curbing radical actions, highlighting the importance of distinguishing between the two in his "clear and present danger" test.
Jerold S Auerbach, The Patrician as Libertarian: Zechariah Chafee, Jr and Freedom of Speech, 42 NEW ENG Q 511 (1969).
Chafee proposed that the state should establish an impartial tribunal to resolve industrial disputes, akin to how historical feudal practices allowed for the resolution of blood feuds and boundary conflicts in the King's courts This approach aims to address industrial unrest by providing a fair and neutral platform for dispute resolution.
381 See id (arguing against the suppression of "radicals" and stating that "[tree discussion will expose the lies and fallacies of propaganda").
382 See id at 169-70 (noting that the various anarchy acts "go far beyond" the normal criminal laws preventing "actual injuries" to the state).
383 See id at 176 (noting that "writings which do not actually urge illegal acts
The Brandeis Gambit suggests that had a more tolerant approach to dissent been adopted, the situation might have been different Instead, the fear of an imminent threat led to the suppression of radical voices, ultimately fostering conditions for its own downfall Chafee lamented the efforts of sedition legislation proponents who were trying to steer the United States down a similar path of repression.
Chafee argued that government repression was a significant factor contributing to the violence of 1919, including events like the Gimbel bombs and the Centralia shooting, which often followed acts of suppression Instead of trying to eliminate radical speech, he advocated for the principle that words cannot cause harm, encouraging Americans to adhere to the adage, "Sticks and stones will break my bones, but words will never hurt me."
The business community recognizes the vital role of free speech, as highlighted by Evans Woollen, President of the Trust Company Division of the American Bankers' Association In his address at a bankers' conference, Woollen urged bankers to embrace a tolerant stance towards radical speech to ensure the preservation of the capitalistic system and property rights in the United States He emphasized that individuals should not face criminal charges for their views, except in extreme situations where their statements pose a clear and present danger of harm.
The government's refusal to allow open dialogue fuels men's resentment, particularly among anarchists who thrive on free expression This suppression not only reveals a fear of dissenting voices but also incites more covert resistance The prevailing belief is that if the government is so eager to silence critics, it must be because their claims hold truth Therefore, a more effective approach to managing anarchy and criminal syndicalism would involve a deliberate tolerance of speech, combined with strong actions against actual violence and efforts to alleviate widespread discontent.
389 Bankers Warned to be More Liberal, N.Y TIMES, Feb 15, 1924, at 3 Al- though Woollen's address focused on tolerance and free speech, the conference itself
WILLIAM AND MARY LAW REVIEW stressed that his seemingly liberal position on freedom of speech
"was not politics but business." 9 ' Asking the bankers to "eschew 'bourbonism," Woollen said that a bourbon's policy of repression
The promotion of class consciousness poses a significant threat to both the established order and those invested in preserving property for future generations Avoiding repressive measures is a pragmatic approach, as it prevents the agitation from being forced underground, where it could become more volatile and uncontainable.
Bolshevism, Fascism, and the Crisis of
American democracy has always been characterized by its distinct differences from other government models, particularly the British monarchy In the late 19th century, the rise of urbanization, immigration, and recurring economic downturns compelled American democracy to evolve in response to a changing social landscape.
"was chiefly devoted to the discussion of technical banking problems." Id
The First Amendment is often viewed as a crucial safeguard for equality, functioning primarily as a safety valve for societal tensions, as highlighted by Kenneth L Karst in his analysis.
394 See BERNARD BAiLYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLU- TION 66-93 (1992); GORDON S WOOD, THE CREATION OF THE AMERICAN REPUBLIC:
395 See, e.g., ROBERT H WIEBE, THE SEARCH FOR ORDER: 1877-1920 (1967) (ex- plaining the fundamental shift in American values between 1880 and 1920)
In the aftermath of World War I, America emerged as a significant global power, facing competition from Bolshevism in Russia and fascism in Italy, which challenged the legitimacy of its democratic system As France, England, and Germany grappled with political upheaval, it became crucial for American democracy to demonstrate its ability to address the challenges of an urbanized and class-conscious society effectively During this ideological crisis, the reaffirmation of freedom of speech was essential in showcasing how American democracy could resolve societal issues more effectively than the rising authoritarian regimes in Europe.
Following the Bolshevik coup in November 1917, Russian communism quickly emerged as the antithesis of American democracy It became crucial to delineate the differences between American political and cultural values and those of Russia, emphasizing America's superiority American observers noted the Bolsheviks' efforts to suppress dissent, leading to widespread media coverage of the Russian Cheka and Tchezvodchika, the newly established secret police and suppression committee.
The success of Bolshevism raised significant doubts about the establishment's ability to manage domestic unrest, as noted in historical analyses Similarly, the emergence of Nazism in Germany during the 1930s influenced the ideology of free speech in the United States, highlighting a stark contrast between American tolerance and Nazi coercion This study primarily examines American perceptions of Italian fascism and Soviet Bolshevism during the 1920s, focusing on the implications these ideologies had on societal views and political discourse.
World War I significantly affected European states by imposing similar social and political pressures, leading to a prolonged period characterized by both radicalism and reactionary movements.
398 See Becker, supra note 396, at 95 (stating that "the liberal democratic political mechanism functions by enacting into law the common will that emerges from free discussion").
400 See Maude Radford Warren, Free Speech, Bolshevist Style, N.Y TIMES, Jan.
WILLIAM AND MARY LAW REVIEW
The Bolsheviks' intolerance for freedom of speech starkly contrasts with the principles of American democracy An American detainee, held for eight weeks after the Russian annexation of Azerbaijan, highlighted this disparity in an article titled "Free Speech, Bolshevist."
The article examines the Bolsheviks' stringent censorship policies and suppression of free speech, contrasting them with the perceived openness of American society An accompanying cartoon illustrates this theme, featuring a Russian soldier reading "Bolshevist Propaganda" while sitting atop a boarded-up well, symbolizing the denial of truth The character "The Truth" struggles to escape but is ultimately crushed by the soldier's weight, encapsulated by the caption, "The Truth Shall Not Prevail."
Following Mussolini's rise to power in 1922, American perceptions began to intertwine communism, fascism, and the suppression of civil rights as interconnected concepts Similar to the Bolsheviks, Italian fascists enforced stringent press censorship, established a secret police force, and sought to eliminate political dissent Americans were particularly unsettled by the parallels between fascism and reactionary movements.
401 See idL; see also 2 JOSEPH R STRAYER ET AL., THE COURSE OF CIVILIZATION
407 See William E Borah, Free Speech for Free Americans, 52 CHRISTIAN CENTU-
The Matteotti affair in June 1924 starkly highlighted Mussolini's brutal approach to silencing dissent, as outspoken critic Giacomo Matteotti was kidnapped and murdered Despite Mussolini's feigned outrage, this incident triggered a wave of political repression The intertwining perceptions of fascism and communism are evident, as both regimes exercised extensive control over individuals, utilized propaganda and terror, persecuted opponents in concentration camps, and sought to expand their influence through force or subversion.
Mussolini's blackshirts, primarily made up of disillusioned war veterans, share similarities with American groups like the American Legion and the KKK This raises questions about the parallels between Mussolini and A Mitchell Palmer, who aimed to consolidate power by targeting dissenters Could the fervor of the Red Scare potentially elevate a figure like Mussolini to power in the United States? Senator William Borah's inquiry into whether Americans were "going Fascist" underscores the growing concerns regarding the political climate of the time.
In the early twenties, concerns about political repression were often overlooked, as government leaders and intellectuals campaigned to promote a vision of "Americanism" that rejected intolerance, despite historical contradictions Chafee highlighted the commendable restraint of New York Police Commissioner Arthur Woods, asserting that true Americanism is rooted in courage, tolerance, and cooperation between the government and its citizens, fostering loyalty He characterized tolerance as a longstanding cultural norm essential to free speech, contrasting it with the recent, unusual forms of suppression seen during wartime Chafee firmly believed that advocating for this traditional American policy was something to be proud of.
The emergence of Mussolini and Lenin significantly boosted public support for free speech in America As American democracy sought to distinguish itself from rival political ideologies, the commitment to freedom of speech became a key differentiator While the Bolsheviks and fascists suppressed dissent, Americans were able to champion and embrace the value of free expression, showcasing their tolerance for differing opinions.
409 See 2 STRAYER ET AL., supra note 401, at 523-25 (describing "blackshirtse); see also supra notes 281-84 and accompanying text (describing the American groups).
411 See CHAFEE, supra note 353, at 176-78
415 See 2 STRAYER ET AL., supra note 401, at 511
The William and Mary Law Review highlights that American democracy stands out due to its commitment to free speech, a principle that transcends mere slogans used by radical groups like the IWW This fundamental right is deeply rooted in American tradition, showcasing the nation's unique approach to political expression and repression.
Reining in the Margins
As Americans observed unsettling events in Europe, there emerged a growing recognition of the need to integrate both the radical left and the reactionary right into the political mainstream The fall of privilege in Russia and the concessions made by the conservative establishment in Italy and Germany highlighted the risks of political extremism To prevent similar upheavals, Americans began to see freedom of speech as a crucial tool for justifying the existing system among those who posed a threat to its stability, including the working class, the poor, rural southerners, urban immigrants, and the emerging middle class This notion of free speech promised a uniquely American avenue for political change without significantly undermining the current order, as conservatives increasingly viewed it as a harmless outlet for frustration Ironically, the government's previous fear and condemnation of protests only amplified their perceived power, making it logical for conservatives in the 1920s to champion free speech as a means of promoting political participation.
416 See CASSELS, supra note 408, at 15
418 See Freedom of Speech: Whose Concern?, supra note 357, at 103-04.
419 See THOMAS I EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMEND-
420 See Freedom of Speech: Whose Concern?, supra note 357, at 103
618 [Vol 40:557 channeled the energies of the populace in directions that would leave established political hierarchies essentially intact.
The editors of The New Republic recognized the necessity for conservatives to rationalize the current system to those lacking power They noted that while the "possessing class" dominated in terms of wealth, status, and privilege, there is a critical need for justification of this disparity.
The article highlights the stark numerical superiority of the "non-possessing class" and questions the sustainability of the privileges held by the possessing class amid the transformations brought by industrialism, urbanization, and public education It suggests that the privileged must justify their status by demonstrating its societal benefits, a challenging task given the prevailing distrust of the wealthy among the poor Nonetheless, it emphasizes the importance of making the existing system seem credible to the masses, whose political influence is on the rise and whose actions ultimately shape societal outcomes.
The New Republic highlighted the significance of free speech in addressing political legitimation, stating that "there can be no effective defense of the existing system unless thought and speech are absolutely free." The journal argued that individuals are more inclined to accept discomfort and inequality when they feel they have a role in shaping their own futures It emphasized that the justification of the social order would be ineffective unless its advocates are able to express opposing views freely Ultimately, the best way to validate the current system is to convince everyone that they possess the freedom to enhance their circumstances, providing a sense of agency even if their ideas do not lead to immediate change.
The WILLIAM AND MARY LAW REVIEW emphasizes the importance of acknowledging diverse ideas, suggesting that even those in powerless positions can find meaning in their circumstances This recognition allows individuals to feel a sense of agency in shaping their lives, despite the inherent injustices they may face.
Chafee recognized the crucial connection between free speech and political legitimacy, emphasizing that a diverse immigrant population is essential for a thriving community He argued that the government must embrace criticism to foster loyalty, asserting that true allegiance cannot be coerced Instead of suppressing dissent, which only breeds resentment, he advocated for guiding immigrants and radicals toward constructive political engagement Chafee proposed encouraging those with radical views to express their desires through voting, thereby promoting a more inclusive and tolerant society.
428 Thomas Emerson is one of the few mainstream scholars to acknowledge explic- itly the political legitimation function of free speech Emerson wrote:
Individuals who have had the freedom to express their views and persuade others are more likely to accept a decision that goes against them, recognizing it as fair and in line with social norms They understand that they have exhausted their efforts to influence the outcome and realize that resorting to force is not a viable option in a healthy society In many cases, they may have the chance to try again and hope to eventually sway the majority Similar to a judicial process that follows due process, they will see the final decision—despite their disagreement—as legitimate.
Chafee and his contemporaries emphasized that free speech is a fundamental and traditional aspect of American culture, crucial for gaining the trust of immigrants, political extremists, and the underprivileged To validate the existing system, it was essential to demonstrate that diverse viewpoints were always acknowledged and that tolerance has been a longstanding principle, rather than a recent development By portraying historical episodes of repression as exceptions, Chafee aimed to illustrate a continuous tradition of freedom in America He referenced the resilient "American methods" that guided the nation through challenging periods, including its early years, Reconstruction, and various social upheavals, reinforcing the notion of enduring tolerance in American society.
In the early 1920s, conservatives began to embrace free speech, recognizing the relative harmlessness of protests like soap-boxing and leafletting, as they believed such expressions would lead to minimal consequences This shift in perspective was influenced by Justice Holmes's evolving views on the impact of speech Initially, in 1919, he acknowledged that speech could have significant repercussions, likening it to "falsely shouting fire in a theater." However, in the case of Abrams, he reframed these concerns, viewing the potential for sedition in a less alarming context, which ultimately facilitated greater tolerance for free expression among conservatives.
434 See, e.g., Old-Fashioned Free Speech, 49 NEW REPUBLIC 126 (1926)
435 See generally PAUL L MURPHY, THE MEANING OF FREEDOM OF SPEECH 101-21
(1972) (discussing public acceptance of the movement toward free speech protections in America in the early 1920s).
The William and Mary Law Review highlights a case where distributing "a silly leaflet by an unknown man" was deemed insignificant, with Holmes arguing that the notion of such an obscure pamphlet interfering with the war effort was absurd This sentiment reflected a broader perspective in the 1920s, where criticizing the government was often seen as a harmless activity Mid-decade, the Saturday Evening Post remarked on the value of allowing youth to express themselves freely, while The New Republic humorously suggested that radicals should be "Sentenced to Soap-box," indicating that even the most sacred causes could bore the average person.
In the 1920s, conservatives began to view free speech as a generally harmless outlet for anger, yet they maintained that certain types of speech were more benign than others The focus during this era was not only on establishing a clear boundary between safe and dangerous speech—between "liberty" and "license"—but also on directing speech into forms deemed the least threatening This period laid the groundwork for the Supreme Court's "time, place, and manner" doctrine.
In the summer of 1923, the National Civic Federation established a committee to create a free speech manual for law enforcement, outlining suitable venues for public speaking and assembly Legal scholar Zechariah Chafee noted that a speaker on a street corner poses less risk than one addressing an overcrowded hall filled with supporters This period also saw conservatives elevating even the most benign forms of expression in the hierarchy of First Amendment rights.
438 Abrams v United States, 250 U.S 616, 628 (1919) (Holmes, J., dissenting).
440 Free Speech, 199 SATURDAY EVENING POST 22, 22 (1926).
441 Sentenced to Soapbox, 24 NEw REPUBLIc 219, 220 (1925).
442 Although conceived in the 1920s, the "time, place, and manner" doctrine was first developed in a series of cases decided around 1940 See Cox v New Hampshire,
443 See Fix Scope of Civil Rights, N.Y TvImES, June 24, 1923, at 19.
The Brandeis Gambit highlights the Supreme Court's recognition of pamphleteering and soap-boxing as essential forms of expression, closely aligned with the fundamental principles of the First Amendment.
Conservatives sought reassurance that free speech would not threaten the established order, while potential dissidents needed to believe that engaging with the system could lead to meaningful political progress Unwittingly, ACLU activists and other civil libertarians may have contributed to the reinforcement of this notion.
In January 1920, members of two pacifist organizations, the National Civil Liberties Bureau and the American Union Against Militarism, established the ACLU Throughout the 1920s, the ACLU focused primarily on defending organized labor, viewing the right to organize as a crucial aspect of the labor movement This strategic emphasis aimed to attract support from middle-class liberals, as the ACLU approached the labor struggle as a defense of fundamental rights.
Free Speech and Propaganda in the "Marketplace of Ideas"
THE BRANDEIS GAMBIT
During the 1920s, the Supreme Court maintained a restrictive interpretation of free speech, utilizing the "bad tendency" and "constructive intent" doctrines to uphold convictions under the federal Espionage Act and various state sedition and criminal laws This conservative approach was backed by a group of justices, including Chief Justice White and several others who were later replaced Despite these limitations, the importance of free speech as a means of promoting democratic ideals was acknowledged, with Chafee emphasizing the role of education in fostering citizens' faith in progress through law.
499 See id at 222 At the time, the term "propaganda" held little of the negative connotations it does today See, e.g., Harold D Lasswell, Propaganda, in 12
ENCYCLOPAEDIA OF THE SOCIAL SCIENCES (1st ed 1934), reprinted in PROPAGANDA, supra note 483, at 13 (stating that "propaganda as a mere tool is no more moral or immoral than a pump handle").
500 See CHAFEE, supra note 353, at 222.
501 See, e.g., Schaefer v United States, 251 U.S 466, 479 (1920) (holding that
"the tendency of the [newspaper] articles and their efficacy were enough for of- fense").
In the case of Abrams v United States, 250 U.S 616, 621 (1919), the court upheld the "constructive intent" doctrine, asserting that defendants are presumed to have intended the consequences that their actions were likely to produce.
507 See, e.g., Pierce v United States, 252 U.S 239 (1920) (opinion by JusticePitney, joined by Chief Justice White and Associate Justices VanDevanter,McReynolds, McKenna, Clarke, and Day).
In the significant free speech cases of the 1920s, a majority of seven justices, including Holmes and Brandeis, played a pivotal role, notably in cases such as Schaefer v United States and Gitlow v New York While Holmes often aligned with Brandeis, he remained anchored to his Abrams opinion, whereas Brandeis was instrumental in articulating the functional justifications that linked freedom of expression to social stability, authoring most of the dissenting opinions.
Justice Brandeis recognized the importance of adapting free speech doctrine to meet the evolving requirements of American democracy He was profoundly dedicated to the intrinsic moral value of the free enterprise system, and his initiatives to unveil corruption within big businesses, along with his writings, highlighted his commitment to these principles.
Curse of Bigness 5 1 7 and Other People's Money 5 18 earned him the reputation as "the people's attorney,"" 9 his principal concern
508 251 U.S 466 (1920) Justice Clarke, however, dissented in Schaefer See icL at
510 254 U.S 325 (1920) Although Chief Justice White dissented in Gilbert, his opinion, consisting of a single sentence, was based on a grounds unrelated to free speech See id at 334 (White, C.J., dissenting).
514 Holmes wrote for himself and Brandeis only in Gitlow See Gitlow, 268 U.S. at 672.
515 See Whitney, 274 U.S at 375 (Brandeis, J., concurring) ("[Tihe path of safety lies in the opportunity to discuss freely supposed grievances and proposed reme- dies ")
516 See, e.g., Letter from Louis D Brandeis to Winthrop Talbot (Apr 16, 1912), in
The letters of Louis D Brandeis, edited by Melvin I Urofsky and David W Levy, provide insight into his views on capitalism and morality Notably, a letter to Charles Richard Crane dated November 11, 1911, highlights Brandeis's perspectives Additionally, Richard M Abrams discusses Brandeis's moral beliefs in the context of capitalism in his work, "Conservatism in a Progressive Era."
517 Louis D BRANDEIS, THE CURSE OF BIGNESS: MISCELLANEOUS PAPERS OF Louis
518 Louis D BRANDEIS, OTHER PEOPLE'S MONEY AND How THE BANKERS USE IT (Melvin I Urofsky ed., Bedford Books 1995) (1914).
519 See ABRAMS, supra note 516, at 59
The Brandeis Gambit emphasized that while economic inequality was not inherently wrong, unchecked capitalism could incite public anger against private capital and foster anarchistic and socialistic sentiments As a founding member of the National Civic Federation, Brandeis collaborated with progressive capitalists to advocate for industrial trade, unionism, and collective bargaining, aiming to mitigate radical labor movements and maintain a stable capitalist system He warned business leaders that the excesses of capital would eventually lead to heightened demands from the less affluent and urged them to support efforts to prevent injustice Additionally, Brandeis was instrumental in establishing the United States Commission of Industrial Relations, which sought to identify the root causes of labor radicalism and propose legislative solutions to address these issues.
Brandeis argued against the effectiveness of direct repression in combating radicalism, asserting that such measures would only foster greater contempt for the law and heighten the risk of a socialist revolution He believed that a more constructive approach was necessary to address left-wing insurgency from the outset.
520 Letter from Louis D Brandeis to Felix Frankfurter (Sept 30, 1922), in 5 LET-
TERS OF LOUIS D BRANDEIS, supra note 516, at 66.
In a letter dated May 14, 1908, Louis D Brandeis expressed his views on the economic system, which Max Lerner later summarized in 1932, noting that Brandeis aligned with the normal functioning of the economy but opposed its pathological aspects Lerner highlighted Brandeis's focus on addressing the flaws within the existing economic framework, emphasizing his commitment to reform rather than a complete overhaul of the system.
522 See generally JAMES WEINSTEIN, THE CORPORATE IDEAL IN THE LIBERAL STATE: 1900-1918, at 3-39 (1968) (discussing the objectives and strategy of the National Civ- ic Federation).
524 See Letter from Louis Brandeis to William Howard Taft (Dec 30, 1911), in 2 LETTERS OF LOUIS D BRANDEIS, supra note 516, at 531-35.
On July 11, 1912, Louis Brandeis wrote a letter to Charles Warren Clifford, which can be found in the collection "Letters of Louis D Brandeis" on pages 646-47 Additionally, a previous correspondence from Brandeis to William Lawrence dated May 14, 1908, is also included in the same collection on page 152.
William and Mary Law Review highlights that Louis Brandeis aimed to persuade groups like the IWW to pursue their goals within established political frameworks He advocated for the creation of institutions such as trade unions and collective bargaining to integrate leftist members into the political mainstream, thereby stabilizing disorderly politics Brandeis's lifelong efforts can be viewed as strategies for maintaining the political system Additionally, he was a key figure in the intellectual movement that laid the groundwork for freedom of speech in the early 1920s Despite initial political differences with Herbert Croly, Brandeis grew to admire publications like The New Republic and The Nation, which featured insightful discussions on free speech He actively engaged with these journals, suggesting article topics and even contributing anonymously.
In 1922, Brandeis expressed great interest in Walter Lippmann's work, highlighting its potential to aid those engaged in political science He believed Lippmann's insights would encourage others who share similar concerns to confront challenges rather than ignore them This perspective influenced Brandeis's approach in his First Amendment opinions, emphasizing the importance of thoughtful engagement with complex issues.
526 See Jeffrey M Blum, The Divisible First Amendment: A Critical Functionalist Approach to Freedom of Speech and Electoral Campaign Spending, 58 N.Y.U L. REV 1273, 1319-20 (1983).
529 Brandeis advised Wilson during the 1912 Presidential election, while Croly advised Roosevelt See CHARLES FORCEY, THE CROSSROADS OF LIBERALISM 207-08
In 1961, Louis Brandeis distanced himself from The New Republic due to his rejection of Herbert Croly's "New Nationalism" concepts During the early years of the journal, Brandeis made it clear that he wanted no association with Croly's publication, as the distinctions between the New Nationalism and the Wilson-Brandeis New Freedom were well-defined at that time.
530 See, e.g., Letter from Louis Brandeis to Felix Frankfurter (Sept 24, 1922), in
5 LETTERS OF Louis D BRANDEIS, supra note 516, at 64 (suggesting that The New Republic explain the three essentials of social-political reform to its readers).
In his article "What to Do," published in the New Republic in 1922, Louis D Brandeis proposed strategies to mitigate industrial conflict following recent coal and rail strikes For further details, refer to the 5 letters of Louis D Brandeis, noted in the previous citation.
532 Letter from Louis Brandeis to Felix Frankfurter (Oct 20, 1925), in 5 LETTERS
Brandeis extensively utilized Chafee's writings, particularly drawing from chapter two of Chafee's "Freedom of Speech" for his Gilbert dissent, which he accessed in page proofs provided by Chafee.
In his opinion, Brandeis acknowledged the influence of "Freedom of Speech," noting in a letter to Chafee that he had drawn significantly from the work, inviting Chafee to observe the extent of his borrowing.