David Rabban

Free Speech in America

VTR Date: May 27, 1998

Law professor David Rabban discusses the First Amendment in the real world.


GUEST: Prof. David Rabban
VTR: 5/27/1998

I’m Richard Heffner, your host on The Open Mind. And my guest today, David Rabban, professor of law at the University of Texas in Austin, has written a particularly intriguing, and certainly a popularly accessible study of free speech in its forgotten years, namely the half-century before the First World War. Now, in it, Professor Rabban focuses our attention on the risks Americans run when tempted now to neglect or to minimize individual free-speech rights in order to secure social justice. But I would like to begin our program today by asking my guest whether those aren’t risks that must be taken in any just and democratic society. Fair question?

RABBAN: It is a fair question. And I believe there are limits to free speech. But based on my historical research, I worry very much about state restrictions on speech. In fact, I hadn’t thought about talking about recent free-speech controversies until I saw the close analogies between what I uncovered historically before World War I and certain modern attempts to restrict free speech. And I saw that attempts to restrict free speech before World War I led to the punishment of speech that most people today would want to protect. I’m worried that current attempts to restrict free speech might lead to similar negative results.

HEFFNER: But, you know, Professor Rabban, when you talk about restricting free speech, it seemed to me as I read your book and reread it, because I was so concerned to make sure I understood precisely your point of view, that free speech has become for you, or is for you, what the nine old or young men or women say it is. And that really isn’t… I think of Mr. Dooly, who says, “The law is what the judges say it is.” You talk about people who care less for free speech. But aren’t they, in our own days, caring less for an interpretation of what free speech is?

RABBAN: Oh, I agree with that. But I do disagree with you that I view free speech as being whatever the majority of the current Supreme Court says it is.

You know, I undertook this project not to promote a particular view about free speech. I had a historical puzzle, which was: Why, in all the law school courses I took, in constitutional law, in legal history, even specialized courses in free speech, there was no discussion at all of any free speech controversies or litigation between roughly 1800 and 1917. It seemed to me unlikely that that assumption of no free speech controversies, no free speech litigation, over more than a century, it seemed to me unlikely that that was accurate. And it was to try to find out about the free speech controversies in the past that led me to write this book. I did not have a preconception about what rules governing free speech should be today. And, in fact, many of my views are open as to how to regulate current free speech controversies. But I did notice, and I emphasized in my book, how many of the cases before World War I, cases people thought didn’t exist, almost all of those cases restricted free speech rights using this very dangerous bad tendency theory. That is: any time a jury or a judge believes that free speech might have a bad tendency on the public welfare, public welfare as construed by a jury or a judge, then free speech can be restricted. And according to this bad tendency test that was prevalent before World War I, all kinds of free speech that I would suspect you and many of your viewers would want to protect were restricted, because it was easy to say that speech about contraception or speech about political arrangements, even commercial speech, had a bad tendency on the public welfare. And I see, in current attempts to regulate free speech, a re-emergency of this bad tendency test.

HEFFNER: You talk about commercial speech.

RABBAN: Right.

HEFFNER: Do you yourself identify or equate commercial speech with free speech?

RABBAN: I personally do not put commercial speech at the same level as political speech. But I am open to the view that the First Amendment protects commercial speech to some extent.

HEFFNER: To some extent. But the notion that your dollar is your speech is your word, which seems to be the position that the present court takes, is that something that you would accept as a constitutional scholar?

RABBAN: I am convinced that money helps people speak, and therefore it makes sense to worry, in First Amendment terms, about restricting the amount of money people can spend on political campaigns. I am open to certain restrictions on political spending, but I’m not convinced by people who simply say excessive spending on political campaigns has a bad tendency to undermine the political process. That’s not a convincing justification for me.

HEFFNER: Suppose we didn’t use the phrase “bad tendency”; just say that it’s really not possible at all times to identify the free spending, the unlimited spending of dollars with the unlimited political speech that you and I know is what was meant by the First Amendment, whatever else may have been meant.

RABBAN: In fact, I think there are good arguments for restricting campaign spending as speech, based in some of the First Amendment arguments that I uncovered from the pre-World War I period. I only object to using this bad tendency test, which had the result before World War I — and I’m afraid would have the result if we used it again — of restricting too much speech. A better argument, it seems to me — and I haven’t decided myself whether I would accept it if I were a judge, but it’s a plausible argument — is that the main purpose of protecting free speech under the First Amendment had to do with the establishment of a democracy in the United States. And the theory was that Americans, where popular sovereignty rested with the people, needed more free speech to criticize government than did people in England in a monarchical system.

There was a close connection originally between the right of citizens to criticize government and free speech protected by the First Amendment. I think an argument can be made that disproportionate spending by the rich on political campaigns undermines the relationship between speech and a democracy. And I think that is a more persuasive argument for restricting campaign spending than a more generalized notion that campaign spending has a bad tendency on the public welfare. So I haven’t decided myself whether that’s the approach to take, but that’s a more plausible approach than simply campaign spending has a bad tendency on the public welfare.

HEFFNER: Well, here… Let me look and see when the hackles went up in particular. You say that, you write, “It is not surprising that critics of liberal individualism in the late Twentieth Century have shifted…” And now you’re talking about now, the present — “…have shifted their attention to the First Amendment in attacking the perversion of individual constitutional rights to support inequality.” What did you mean by “the perversion?” You seem to be accepting their idea.

RABBAN: Well, I was trying to characterize it, but I do understand it. The protection of speech under the First Amendment developed after World War I. What I have shown in my book was the extent to which there was no such protection before the war. And I showed how this protective view of free speech emerged out of the outrage at the repression of anti-war speech during and after World War I.

The First Amendment tradition that emerged after World War I has been called by a famous scholar, Harry Calvin, who taught at the University of Chicago, as “the worthy tradition of free speech.” And what Calvin meant by that, I think, is the worthy tradition of protecting political dissenters against the state. It was political dissenters against the state, opponents of World War I, who were jailed under the Espionage Act of 1917 for general opposition to the war. And as the minority position of Justices Holmes and Brandeis became accepted by the Supreme Court majority in the 1930s, free speech was considered to be the protection mostly of political dissenters against state repression. This was what Calvin called “the worthy tradition.” And many of the major free speech cases from the 1930s into the early 1970s involved an unpopular dissenter on the left or on the right. The socialist who opposed World War I raised the cases then. People who were sympathetic to the Communist Party or were portrayed that way were punished in the McCarthy era of the ’40s and ’50s…


RABBAN: … and produced many of the landmark free-speech decisions of the time, and leaders of the Ku Klux Klan or neo-Nazis raised free speech issues. So protecting their rights of speech was part of this worthy tradition.

Beginning in the 1970s, many of these current critics of Supreme Court cases say — and I agree with their description — no longer is the unpopular political dissenter the paradigmatic free speech litigant. In recent years, who’s been protected by Supreme Court free speech decisions? Wealthy people who spend a lot of money, arguably to distort the political process. Commercial pornographers, racists, sexists, commercial advertisers who advertise harmful products such as tobacco. These are the people who’ve been protected by the recent Supreme Court decisions. This is no longer, critics say, the worthy tradition.

HEFFNER: Do you think it is?

RABBAN: I do not. But I think that the arguments used by current critics of Supreme Court decisions are dangerous and might lead to punishing people they would want to protect, such as political dissenters.

HEFFNER: Well, having lived through a number of the eras that you make reference to, the McCarthy era certainly, I understand what it is that you’re saying. And, as a historian, I can appreciate what you write historically in your book. You don’t want us to trivialize, not to recognize, not to pay our respects to the enormous importance of that tradition. It was there. It was, if not working, it was attempted, the attempts were being made to use First Amendment concerns to protect political free speech. But once you’ve said that, why must you today defend what does not fit in, in your estimation, to that worthy tradition? That’s not a matter of dismissing all of that as right speech, or rights words; it’s a matter of saying that, well, going back to the discussion you yourself offer here of the use of the Fourteenth Amendment to protect, what, the freed men, no, but to protect economic interests once again. That wasn’t a worthy use of the Fourteenth Amendment. And as one justice said, it didn’t write into the Constitution of the United States Herbert Spencer’s social statics. Why don’t you offer us the means by which we can adhere to the tradition that you respect so much and make it work today? What would be the arguments that would satisfy you today?

RABBAN: Well, I want to emphasize that I did not write this book to consider and critique current free speech doctrine by the United States Supreme Court. I wrote this book because I did not believe the assumption of my law professors and all the readings I did in law school and after that there was no litigation over free speech in this long period between 1800 and 1917. So I began this book by looking for free speech controversies and litigation in the Nineteenth Century and the early Twentieth Century.

HEFFNER: And you found them.

RABBAN: I wrote this book as a historian. And I found hundreds of free speech cases just in the period between the end of the Civil War and World War I. Cases nobody knew about until I wrote this book. And what struck me, reading those many cases, was how overwhelmingly hostile all courts at all levels of the judicial system were to all free-speech claims of all varieties. I was also struck by the extent to which the courts relied on this notion that free speech has a bad tendency on the public welfare, and that in itself is justification for repression.

I can give you an example of a case in 1907 decided by Justice Holmes, who, by many, is considered someone who protected free speech. But Justice Holmes articulated this “bad tendency” test in a case involving a United States senator from Colorado who was also the publisher of the major newspaper in the state. This man, named Paterson, wrote articles and editorials and carried cartoons criticizing the justices of the Supreme Court of Colorado for, believe it or not, relying on political concerns in deciding legal cases. So they weren’t just following the law; they were being political. The justices were so angry at these accusations in Senator Paterson’s newspaper, that they demanded the Attorney General of Colorado to bring criminal contempt proceedings against Senator Paterson for bringing the justices into disrepute. Paterson invoked the First Amendment. And he even offered to prove the truth of his accusations against these justices. Paterson was a Democrat. Paterson lost in the lower courts. The case went to the Supreme Court. And, writing for eight of the nine members of the Supreme Court, Justice Holmes upheld Paterson’s conviction. What Justice Holmes did was say that the First Amendment of the United States Constitution did nothing more than incorporate into American law what had been the English common-law of free speech before the American Revolution, as set forth by Sir William Blackstone in the 1760s and 1770s. And that English law was that while there could be no prior restraints on speech, the government could punish any speech that had a bad tendency to injure the public welfare. “Well,” Holmes said, “This is the American law also under the First Amendment, and Paterson’s criticism of the justices of the Supreme Court of Colorado did have a bad tendency on the public welfare because it brought the justices into disrepute.” And what about the claim that the accusations were true? Well, the old English law of libel was, the greater the truth, the greater the libel. If accusations are true, the libel would bring people into more disrepute. And Holmes said what applies in libel also applies in contempt.

So here is a Senator, a publisher, using political speech to criticize a court in a way many people would do today, being convicted, and his conviction upheld by Justice Holmes in 1907 because of the bad tendency of his speech. And I could repeat all kinds of examples involving obscenity, involving radical speech. This use of the bad tendency test was pervasive. And the progressive era intellectuals were largely oblivious to this fact, and also they were opposed in general to individual rights under the Constitution.

Going back to your question. The reason they were was that individual rights of liberty and property were being used to strike down progressive social legislation, so that when New York passed a law limiting maximum hours to 50 a week, the Supreme Court held that that violated the liberty of contract of the employer and the employee. Well, progressive intellectuals before World War I viewed individual constitutional rights as a barrier to social legislation in the public interest, in the public welfare. When anti-war dissidents during World War I started relying on the First Amendment to defend themselves during prosecutions under the Espionage Act, many progressive intellectuals, even John Dewey, the great philosopher, who was more sympathetic to the role of dissent in democracy than most progressives, he criticized these anti-war dissenters for relying on what Dewey called “outmoded Victorian platitudes about individual rights.”

A few months later, when many of these dissidents had been jailed under the Espionage Act, Dewey wrote an article called “An Explanation of Our Lapse.” And the lapse he was referring to, I think, included his own lapse about being insufficiently sensitive to the individual right of free speech. And what I worry about today is that when current critics of the Supreme Court say that there’s too much attention to individualism, that individual constitutional rights, including free speech, stand in the way of legislation in the public welfare, I see them resuscitating this old, pre-World War I argument that allowed for the suppression of all kinds of speech, including speech that the current critics of the Supreme Court would want to protect.

HEFFNER: Now, what you want to do is defend those liberties, defend that free speech. How will you do it outside of the realm (and I’m sure you have decided yourself how you can do that), outside of the realm of the poor or bad tendency notion?

RABBAN: Well, let me make clear, I do not want, as a citizen, to protect all the free speech that the Supreme Court has upheld under the First Amendment. That is not my goal. As a citizen, I am very sympathetic to the critics. I would like commercial advertising to be regulated. I would like restrictions on certain forms of pornography. I would like restrictions on racist and sexist speech. Now, as a lawyer, I am not sure whether there are good arguments to restrict speech in those ways. But what I do feel confident of as a historian who has uncovered the history of free speech between the Civil War and World War I, that the argument that speech has a bad tendency on the public welfare is a bad argument, a bad legal argument.

HEFFNER: Then I have to ask Citizen Rabban: What would be a good argument?

RABBAN: Well, I could answer that both as a citizen and as…

HEFFNER: A lawyer?

RABBAN: …a lawyer.

HEFFNER: Okay. Better still.

RABBAN: Okay. Well, one argument is one that I used earlier. Once again, I’m not sure I would agree with it as a judge, but I do think it’s plausible and should be explored. That is, in the example of campaign spending. I think to me it is plausible to say that the main purpose of the free speech provision of the First Amendment was to protect rights of democratic dissent. And I think one could argue that allowing unequal campaign spending undermines democracy, and therefore is inconsistent with the purpose of the free-speech provision in the First Amendment. That is an argument, a plausible one with a historical base, for limiting campaign spending. I’m not sure ultimately I’d agree with it, but to me it’s a better argument and a less dangerous one than simply to say, “There’s too much emphasis on individual rights, we have to restrict individual rights in the public welfare.”

HEFFNER: But, you know, I haven’t heard many scholars or others, Sunstein, Fiss, others whom you mention in your book, make that point, that we have been too concerned about individual rights.

RABBAN: Oh, they do make that point, I believe.

HEFFNER: Don’t they get to that by being concerned about social obligations and social needs rather than going to the other end of the spectrum?

RABBAN: Yes, they do. And in this respect… And that’s why I wrote an epilogue in my book dealing with these current controversies. The argument, the structure of the argument by people like Sunstein and Fiss today is very similar to the structure of the argument used by Dewey and other progressives before World War I. And the argument, both past and present — and you’ve essentially stated it — is: The society should restrict individual rights that stand in the way of democratic legislation in the public welfare; that the interests of the public, of the community, in many instances, outweigh individual rights. And Cass Sunstein, the law professor at the University of Chicago, has a very evocative phrase. He says, “What we need today is a New Deal for speech.”

HEFFNER: I like that.

RABBAN: It’s a very good phrase. I don’t agree with him, but it’s an excellent phrase. By that he means, just as in the New Deal of the 1930s, the Supreme Court restricted individual rights of property, of contract, to allow progressive legislation in the public interest, in the economic and social sphere, so today the Supreme Court should limit — not abolish; Sunstein believes in many free speech rights — but he believes the Supreme Court should limit the individual right of free speech in the interest of the public welfare in areas such as campaign financing, commercial advertising, pornography, racist speech.

HEFFNER: It seems distinctly unfair for me to say, after you’ve expressed Sunstein’s position so well, that that’s all the time we have. But you express your own point of view so well, and you do so particularly in this fascinating book, though I don’t agree with you, I want to thank you for joining me today, and for going on about the problem that you see about the possible trivialization of First Amendment concerns, certainly our notion of a certain period in American history.

RABBAN: Well, thank you very much, and disagreement is basic to free speech, so it was perfectly fine to have it. [Laughter]

HEFFNER: [Laughter] Thank you, Professor Rabban.

RABBAN: Thank you.

HEFFNER: And thanks too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send $4 in check or money order to: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150.

Meanwhile, as an old friend used to say, “Good night, and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.