Saturday, January 13, 2007
Barzun: Revising the First Amendment Revisionists
Posted by Mary L. Dudziak
Charles L Barzun, Climenko Fellow at Harvard Law School, has posted an interesting new piece on SSRN, forthcoming in the Brigham Young University Law Review: Politics or Principle? Zechariah Chafee and the Social Interest in Free Speech. Here's the abstract: The classic defense of free speech has justified its protection on public grounds. Under this view, the First Amendment protects free speech to ensure the proper functioning of democratic self-government by facilitating the spread of truth on important public matters. Recently, however, legal theorists have challenged this view, arguing instead that free expression is properly safeguarded for the sake of the individual. These theorists have variously deployed philosophical, doctrinal, and historical arguments in support of their position. The leading historical argument, now widely accepted among First Amendment theorists and historians, consists of a revisionist account of the origins of the democratic theory of free speech. According to this view, the democratic theory did not grow out of a "worthy tradition" of free speech that includes the American Framers and John Milton. Rather, it is a distinctly modern innovation; Progressive intellectuals, particularly Harvard Law Professor Zechariah Chafee (1885-1957), concocted a theory of free speech based on the "social interest" in its protection that would be compatible with Progressive political ideology. This essay seeks to revise the revisionists. It first seeks to show that the revisionist account is insufficiently supported by the historical evidence. The few nineteenth-century libertarians who paid more than lip service to the subject of free speech justified its protection on public grounds. I then show how late nineteenth-century developments in equity jurisprudence placed property and free speech rights in direct conflict with each other, and I argue that Chafee's work is best understood as an effort to resolve this doctrinal tension through jurisprudential analysis. Thus, where the revisionists see a radical transformation of free speech theory, I suggest there has instead been intellectual continuity and progress.