Reviewed by Stuart Streichler, Department of Political Science, University of Miami.
The usual accounts of the history of free speech in the United States begin with developments in the early twentieth
century, when the U. S. Supreme Court first interpreted the First Amendment's mandate that Congress shall make
no law "abridging the freedom of speech, or of the press." It was an inauspicious start for the freedom
of expression, aside from the minority views articulated by Justice Oliver Wendell Holmes, Jr. and Justice Louis
D. Brandeis. For some time, particularly in the context of the Red Scare and the McCarthy era, the Court did not
look favorably on the Socialists, anarchists, and Communists claiming First Amendment freedoms. The broad protection
for political speech with which we are familiar today was not solidified in law until the 1960s, perhaps symbolized
best by Justice William J. Brennan's pronouncement in NEW YORK TIMES CO. v. SULLIVAN (1964) "of a profound
national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,
and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and
public officials."
To Michael Kent Curtis, Professor of Law at Wake Forest University School of Law, that basic principle was there
all along, kept alive throughout American history by people outside the courts. He describes a "popular free
speech tradition" in which religious ministers, newspaper editors, politicians, and activist citizens did
not simply speak out on great public issues but explicitly discussed their right to do so. This tradition thrived,
Curtis suggests, in the crucible of three major conflicts over free speech, which he examines mainly through a
descriptive narrative. The first concerned the Sedition Act of 1798, which defined a criminal offense with substantial
penalties for publications directed against President John Adams and the Federalist-dominated Congress. Next,
Curtis considers the long-running
debate over free speech brought on by various efforts to stifle the antislavery movement. The last episode involves
antiwar speech during the Civil War. In
each case, Curtis argues, the public's reaction to repressive governmental actions shaped the understanding of
freedom of expression. He further suggests that, to the extent that courts and jurists addressed questions involving
speech, they had in view a conception of free speech, which was more "narrow" and "suppressive"
than the popular understanding (p. 12). Thus, in Curtis's account, two opposing traditions--one fostered by judges,
the other advanced by the people--vied with each other until the courts, well into the twentieth century, embraced
the popular conception.
Curtis's basic thesis will find a receptive audience among scholars today. Even those of us who concentrate on
the
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judiciary's role in American constitutional development agree that more attention should have been given over the
years to what was going on outside of the courts. In that respect, Curtis came up with an intriguing idea. As
I read his study, I found myself thinking of ways to enhance the development of his argument.
Curtis specifically disclaims any intention to have written a comprehensive account of the history of free speech
in the United States. His focus is on what he considers "the most significant national free speech controversies"
between the adoption of the First Amendment in 1791 and the Fourteenth in 1868 (p. 3). Widening the perspective
might have led to a deeper understanding of the free speech tradition, particularly in the antebellum period, with
its wide range of social movements (temperance, prison reform, and women's rights, for example) and its rich pluralistic
discourse (from the lofty ideals of transcendentalism to the base appeals of nativism). Slavery was not the only
topic that gave rise to invective. Add to that antiwar sentiment during both the War of 1812 and the War with
Mexico, and the question arises as to whether any of this led to attempts to control speech. Even if there were
none, that by itself would indicate how robust
freedom of expression actually was then.
Indeed, the conclusion I drew from Curtis's account was not of speakers battling the government at every turn but
rather of the government's hands-off approach. The striking comparison to the twentieth century is the conspicuous
absence of the regulation of speech, with the exception of one subject, slavery. The national government did not
engage in any sustained attempt to control speech. The Sedition Act was exceptional. However extensive the Lincoln
administration's incursions against civil liberties, its attempts to curb antiwar speech during the Civil War were
limited. That leaves the history of the slave states and their representatives. Without diminishing the significance
of their efforts to check antislavery speech, it remains open to question whether the peculiar institution created
peculiar problems
that do not form a general pattern.
Seen in that light, it is not clear that the history of free speech in the nineteenth century neatly divides into
a contest between the people and the judiciary. Curtis describes the judicial tradition as based upon the bad
tendency doctrine taken from English law: speech that tended to induce harm was unprotected. He further states
that American "courts provided little protection for freedom of speech" from the Sedition Act through
the Civil War (p. 416). But throughout that period, it was not the case that courts were applying the bad tendency
test and consistently limiting the freedom of expression. Rather, cases were not coming before the courts. The
Sedition Act resulted in a handful of cases; even on slavery, judicial opinions were sporadic. Curtis notes that
lower federal courts divided on the
suppression of antiwar speech during the Civil War. The main conclusion I drew from Curtis's account was that,
in the United States, there was no well-developed
judicial tradition on free speech before the twentieth century.
Two specific points could have rounded out Curtis's argument. The first concerns the Fugitive Slave Act of 1850.
This harsh legislation led to outright calls in the North to resist the law and the government. This was in many
ways a paradigm case of incitement to unlawful action. Yet while Curtis explores various episodes surrounding
slavery, he omits any
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discussion of the 1850 Act. The second point has to do with the Sedition Act. Today, as Curtis notes, we understand
this legislation as the archetype of what democratic government should not do. But how exactly was the Sedition
Act viewed in the early nineteenth century? Although Curtis details the immediate reaction when this legislation
was still operative, he provides little documentation measuring public opinion after the Act expired. However,
that seems to be the crucial point, to show that there was a general consensus afterwards that the Sedition Act
was obviously unconstitutional.One point about the coverage of this book is in order. Although Curtis discusses
the Sedition Act and the Civil War, most of the book is devoted to free speech issues relating to slavery. One
reason for that is Curtis's
interest in supporting his position on the meaning of the Fourteenth Amendment. In particular, he argues that
the privileges and immunities clause ("No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States") was designed to protect national rights of free speech against
the states. In this respect, this book is an extension of Curtis's other major study, NO STATE SHALL ABRIDGE (1986).
All in all, Michael Kent Curtis has put together a useful resource on free speech in American history. Although
it was not Curtis's aim to compare the styles of constitutional argument over free speech then and now, his book
led me to do that. His discussion illuminated how free speech doctrine in a bygone era consisted mainly of spinning
off some basic arguments from bedrock principles and how involved the law of the First Amendment has become since
then.
REFERENCE:
Curtis, Michael Kent. 1986. NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS. Durham: Duke
University Press,.
CASE REFERENCE:
NEW YORK TIMES CO. v. SULLIVAN, 376 U.S. 254 (1964).
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Copyright 2001 by the author, Stuart Streichler.