Free Speech, "The People's Darling Privilege," Struggles for Freedom of Expression in American History

Article excerpt

Free Speech, "The People's Darling Privilege," Struggles for Freedom of Expression in American History.

Michael Kent Curtis. Durham and London: Duke University Press, 2001. 520 pp. $32.95 hbk.

American scholars describe freedom of expression by dissecting efforts to destroy it. That generalization by John D. Stevens of the University of Michigan is again borne out by Michael Kent Curtis's interconnected essays, Free Speech, "The People's Darling Privilege. " Curtis is one of a number of legal scholars, including David Anderson and David Rabban, who-fortunately-find First Amendment history irresistible.

Professor Curtis, of Wake Forest University, has a gift for aphorism and provides a distinctive voice in studying the rise and fall of free expression in times of crisis. This book, despite some unevenness, belongs on civil libertarians' bookshelves, along with Zechariah Chafee's classic Free Speech in the United States, Leonard Levy's Emergence of a Free Press, and Norman L. Rosenberg's study of political libel, Protecting the Best Men.

Curtis, aining at both scholars and a lay audience, presents a quick survey of the English and American colonial backgrounds, including an over-view of the Zenger sedition trial in colonial New York in the 1730s. This is one of the few accounts of the Zenger trial that mentions neither attorney James Alexander nor Zenger's "Philadelphia lawyer," Andrew Hamilton.

Like the Rosenberg book, there is irony in the title Curtis chose. To those of us who bridle at the use of privilege rather than right to describe freedom of expression, "The People's Darling Privilege" is a disquieting title. The actual phrase came from Federalist congressman Harrison Gray Otis of Massachusetts during the Sedition Act debate. Otis complained that Jeffersonian Republicans were deluding the people with claims that the Sedition Act was threatening the "darling privilege."

As Otis saw the Act, it would punish only those publications with a tendency to do harm. Professor Curtis, it should be added, provides examples indicating that the terms privilege and right were used to describe freedoms guaranteed against the central government by the First Amendment and variously provided by provisions of state constitutions. To Curtis, the 1798 "Sedition Act is not simply an artifact from a bygone era.... The issues raised by the Act go to the very heart of freedom of speech in a democracy."

Perhaps what is most important about Free Speech: "The People's Darling Privilege" is the author's evocation of American abolitionists' dual fight against slavery and for freedom of expression from the 1830s through the 1850s. …