Free Speech in its Forgotten Years, 1870-1920 / Edition 1

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Most American historians and legal scholars incorrectly assume that controversies and litigation about free speech began abruptly during World War I. However, this text reveals that important free speech controversies and legal cases, often involving sex reformers and labor unions, preceded the Espionage Act of 1917.
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Editorial Reviews

Library Journal
Challenging the view that free speech controversies and court cases effectively began during World War I, Rabban (law, Univ. of Texas, Austin) focuses on free speech issues between the Civil War and World War I. Through an impressive marshaling of controversies, cases, and litigants, he persuasively argues that libertarian radicalism and the Free Speech League, more than traditional American liberalism and the American Civil Liberties Union, deserve much of the credit for pushing valuable First Amendment issues to the forefront of American social, political, and legal circles. Of particular note is Rabban's treatment of the tension between libertarian radicalism and American liberalism, especially in the context of the debate over the meaning and application of the free speech provision of the First Amendment. This enlightening work fills a void in First Amendment civil liberties studies. Deserving careful scrutiny by scholars and others alike, it is highly recommended for all libraries.Stephen Kent Shaw, Northwest Nazarene Coll., Nampa, Id.
From the Publisher
"Free Speech in Its Forgotten Years fundamentally revises our understanding of the history of free speech in America between the 1870s and World War I. Rabban skillfully recovers libertarian and antilibertarian attitudes toward speech that a long tradition of twentieth-century commentary has ignored." G. Edward White, University Professor and John B. Minor Professor of Law and History, University of Virginia

"Future scholarship on the First Amendment will henceforth begin with this exceptional book. Rabban wholly reorients free speech history with newly mined facts and sharp insights about two lost generations of scholars, activists, and their fierce struggles." Norman Dorsen, Stokes Professor of Law, New York University, and President, ACLU, 1976-1991

"David Rabban has done more than ensure that First Amendment scholars will never again forget the historical significance of the period 1870 to 1920. His extraordinarily rich and detailed account should become a central document in contemporary debates over the meaning and application of the speech provision of the Constitution." Gary Jeffrey Jacobsohn, Fred Greene Third Century Professor of Jurisprudence and Politics, Williams College

"An important, truly eye-opening account of the heretofore neglected national encounters with free speech issues during the decades preceding World War I. Rabban's greatest achievement is his skill in interweaving absorbing social and intellectual history with a thorough and careful analysis of the legal arguments ignored by the Supreme Court until 1919." Gerald Gunther, William Nelson Cromwell Professor of Law, Emeritus, Stanford Law School

"David Rabban's Free Speech in Its Forgotten Years constitutes an important occasion in the history of the First Amendment. This is an enormously important book for lawyers, historians--and for the general public." Stanley N. Katz, Princeton University

"David Rabban's formidable research has uncovered a fascinating story which everyone devoted to civil liberties will want to read. He challenges much that we thought we knew about the origins of the American Civil Liberties Union, and offers new perspectives on the history of American reformers." Linda K. Kerber, May Brodbeck in the Liberal Arts and Professor of History, University of Iowa

"Rabban's solid history deepens our understanding of civil liberties in America..." Washington Post

Rabban has produced nothing less than a masterpiece....Highly recommended for all readers, general and academic, at all levels." M. W. Bowers, University of Nevada, Las Vegas

"Rabban interestingly and compellingly makes his case that there was, during the 'forgotten years' from about 1870 to about 1920, a substantial body of free speech law rarely mentioning the First Amendment and almost invariably repressive." The Federal Lawyer

"Highly readable for a book on a heavy topic." American-Statesman

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Product Details

Table of Contents

Introduction 1
1 The Lost Tradition of Libertarian Radicalism 23
Josiah Warren and Individualist Anarchism 26
The Comstock Act 27
The Controversy Over Cupid's Yokes 32
Lucifer: The Light-Bearer 41
The Emergence of the Free Speech Language 44
The Commitment to Free Speech for All Viewpoints 57
The Work of the Free Speech League 64
2 The IWW Free Speech Fights 77
An Overview of the Free Speech Fights 78
The IWW Ideology of Free Speech 83
Popular Reactions 88
Official Reactions 100
Analysis of Free Speech Themes 109
Regulation of Street Speaking 110
Defining the Boundaries of Protected Speech 116
Free Speech and Majority Rule 126
3 The Courts of Free Speech 129
The Bad Tendency Test 132
Topical Analysis of Free Speech Issues 146
The First Amendment and State Action 147
Postal Regulation 149
Regulation of Political Campaigns 152
Libel and Contempt 155
Regulation of Public Speaking 165
Labor Injunctions 169
Ignoring Free Speech Issues 173
The Judicial Tradition 175
4 Legal Scholarship 177
Theoretical Sources for Free Speech Views 179
The Rejection of Blackstone 189
Limiting the Bad Tendency Test 193
Alternative standards for Analyzing Free Speech Claims 200
The Heritage of Prewar Scholarship 210
5 Free Speech in Progressive Social Thought 211
John Dewey 217
Herbert Croly 232
Continuities in Dewey's Criticism of Pacifist Dissent during World War I 243
6 The Espionage Act 248
The Legislative History of the Espionage Act 249
Espionage Act Litigation in the Lower Federal Courts 255
The Selective Draft Law Cases 270
Supreme Court Briefs in the First Espionage Act Cases 272
The Supreme Court Decisions 279
The Origins of Clear and Present Danger 285
7 World War I and the Creation of the Modern Civil Liberties Movement 299
The New Civil Libertarians of the ACLU and the Demise of the Free Speech League 304
Zechariah Chafee, Jr.: The Scholars as Advocate 316
Dewey's Revised Analysis of Free Speech 335
8 Holmes, Brandeis, and the Judicial Transformation of the First Amendment after World War I 342
Supreme Court Majority Decisions in the 1920s 344
Holmes's Transformation in Abrams 346
The Contribution of Brandeis 355
The Judicial Transformation of the First Amendment 371
9 Epilogue: Current Parallels to Prewar Progressive Thought 381
Index 395
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