Academic journal article Texas Law Review

Redrawing the Boundaries of Permissible Speech

Academic journal article Texas Law Review

Redrawing the Boundaries of Permissible Speech

Article excerpt

FREE SPEECH IN ITS FORGOTTEN YEARS. By David M. Rabban.' Cambridge University Press, 1997. Pp. xi, 404. $34.95

Reviewed by Thomas L. Haskell*

David Rabban's articles on the "forgotten years" of free speech began appearing in law school journals seventeen years ago, so one takes it for granted that many law school scholars have already assimilated at least the gist of his revisionist message.1 In a sentence, Rabban's thesis is that the modern conception of free speech, which protects expression against more than prior restraint and specifically abandons the effort to punish its "bad tendencies," did not spring full-blown from the brow of Oliver Wendell Holmes, Jr. in 1919. But assimilating the gist of a story is not the same as seeing it whole, and the academic world is a notoriously ramshackle affair, whose parts communicate so imperfectly that lessons well-learned in some circles can remain sketchily understood or wholly unknown in others. Speaking as a cultural/intellectual historian with a special interest in the history of academic freedom, I can testify that there is a whole world of half-truths and misapprehensions out there for Rabban's revisionism yet to conquer. In this meticulously researched book, he seamlessly knits together his earlier essays and expands upon them, achieving an unusually successful blend of historical research and legal analysis. It will be indispensable reading, not only for legal scholars, but for anyone who wants to understand liberalism and its curiously convoluted history over the last century and a half.

As his title suggests, Rabban chooses to frame the study as a matter of recovering lost historical memories. He challenges the tacit assumption of law school educators that legal interpretation bearing on the limits of speech remained practically unchanged for a long century after the Sedition Act expired in 1801. Implausible though that supposition may seem, no major casebook on constitutional law includes in its discussion of freedom of expression even a single decision before 1917.2

Accordingly, the principal business of Rabban's first two chapters is to show that the citizens of the United States were locked in fierce struggles over issues of free speech long before the Espionage Act of 1917. Although he makes only passing reference to people and events before 1870, his narrative reaches back as far as the 1830s, treating concerns about free speech as an integral part of the same ferment of libertarian radicalism that gave rise to abolitionism, free thought, free love, and various forms of anarchism.3 From the 1870s until the death of Anthony Comstock in 1915, libertarians found in the tireless antivice crusader a common enemy who could not be ignored and whose scale of operations (he bragged of destroying 160 tons of obscene literature) made the need for an organized opposition self-evident. The National Liberal League and its more radical offshoot, the National Defense Association, picked up the gauntlet as early as 1878.4 By 1902 the Free Speech League (FSL) had come into existence, providing the indefatigable Theodore Schroeder with a platform that he put to remarkably effective use as the nation's leading agitator and strategist for fuller freedom of expression. Schroeder's greatest contribution to the FSL-a legacy later inherited by its successor organization, the American Civil Liberties Union (ACLU)-was the policy of defending free speech for all parties, regardless of viewpoint.5 Rabban credits Schroeder, the FSL, and one of the principal beneficiaries of FSL support, the Industrial Workers of the World (IWW), with developing many of the arguments that Holmes, Brandeis, and others ultimately relied on in redefining the limits of free expression. Rabban's warm admiration for Schroeder, not merely as a publicist, but as a legal thinker, coupled with his respect for the IWW's principled advocacy of freedom of expression in the free speech fights its members staged in twenty-six communities between 1906 and 1917, constitute two of the book's most distinctive aspects. …

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