by Stephen M. Feldman. Chicago: The University of Chicago Press, 2008. 544pp. Cloth. $55.00. ISBN: 9780226240664.
Reviewed by Jerome O’Callaghan, Associate Dean, Arts and Sciences, State University of New York at Cortland. Email: jerome.ocallaghan [at] cortland.edu.
Stephen Feldman has created a history of free expression and democracy that describes and analyzes the mainstream of American history through two ever-present and complementary traditions: one of suppression and one of dissent. From the War of Independence to the War on Terror, everyone who matters is engaged in, or by, this tug of war. Presidents, political theorists, judges, and the public, support dissent and then worry that it has gone too far. It is no surprise that in 200 years of American history freedom of expression came to mean different things to different generations, but if there is one trend that you can count on it is this: in times of war the tradition of suppression is in the ascendant. Feldman adds to the basic duality of his suppression-dissent framework an overarching theory of American political history – i.e., the transition from a republican democracy to today’s pluralistic democracy. The result is not a simple four by four matrix; in Feldman’s hands we have a thorough and engaging 470-page treatise (plus 60 pages of footnotes).
Spread over thirteen chapters Feldman’s review begins with a nod to English and colonial traditions and proceeds to the Civil War. This segment (five chapters long) establishes the basic characteristics of republican democracy: the importance of virtue, the primacy of the people’s sovereignty and the pursuit of an objective common good (which, in turn, serves as a key limitation on government). Revolutionaries asserting a freedom to dissent (in other words, a freedom to promote treason against the crown) became in short order legislators passing the Alien and Sedition Acts. There lies the duality that is the theme of this book.
The next segment, covering only three chapters, is devoted to the difficult and complex transition from the Civil War to the great Depression (corresponding to the three regimes described by Bruce Ackerman in WE THE PEOPLE). Immigration, industrialization and urbanization permeate upheavals in American politics; they also help reconfigure constitutional priorities. This is the start of the evolution to pluralist democracy where government’s role is to provide a neutral forum for the contest between multifarious groups and interests. At this stage the part played by the Supreme Court in explicating freedom of expression becomes prominent. We learn too that the Court, and the judiciary in general, were slow to adapt to these changes. (For more on that, read Eugene Debs’ Canton speech in full. Then read the Supreme Court opinion upholding his ten-year sentence. It is a sobering contrast.)
The next four chapters examine contemporary pluralist democracy (over [*127] the last 80 years) and delve more into the highlights of free-expression case law. The final brief chapter is devoted to “open questions” – these focus more on First Amendment doctrine than on the larger issue of democracy’s decline/revival in American culture. In fact the focus on doctrinal techniques used by the Supreme Court lacks the clarity evident elsewhere in this text, and suggests that the author cannot quite see the forest for the trees.
Nevertheless, given the enormity of this undertaking, Feldman has done a remarkable job. This text is virtually jargon-free and the lines of thought are kept largely untangled. Even when explaining some of the Supreme Court’s more arcane doctrines, Feldman’s writing is clear and concise. Fans of free-speech case law, in its unadorned casebook style, will be frustrated. It takes 200 pages to get to Oliver Wendell Holmes, and that is just for the dissent in LOCHNER. Though he is attentive throughout to the work of political scientists, judges, and lawyers, this is a historian’s book through and through. Some readers may stumble over the back and forth involved in his treatment of democratic pluralism. Depending on whether the context is judicial review (Chapter 10), the Supreme Court on free expression (Chapter 11), or, the traditions of dissent and suppression (Chapter 12), you will find yourself immersed in the same timeframe on three different occasions. For example there is a lot to be said, in the suppression/dissent tug-of-war vein, on the abrupt reversal that occurred between the GOBITIS decision in 1940 and the BARNETTE decision in 1943. In Feldman’s treatment, the contrast between the two cases is diluted; the cases are dissected in piecemeal fashion, and spread across three chapters.
Nevertheless the attentive reader will find a treasure of free expression nuggets in this text. There are the great cases, from ZENGER to SCHENCK, from MASSES PUBLISHING to COHEN’s infamous jacket. There are the wars too, from Independence, to Civil War, to the world wars, to Vietnam. Then there are the leading lights in developing and challenging free-expression doctrine: Hamilton and Holmes, Chafee and Hand, Martin Luther King and Eugene Debs. Let us not forget Joe McCarthy, Anthony Comstock, and J. Edgar Hoover, three villains in what might be called the “Suppression Hall of Fame.” Feldman is particularly persuasive on the tentative role played by Holmes in liberalizing free speech doctrine – to a large extent the gains made under his famous “clear and present danger” test were the work of Chafee and Brandeis. More often than not Holmes held up the rear.
Revisiting the twentieth century evolution of free-expression doctrine reminded this reader of the staggering impact of the era marked by the world wars. Here we have the transition from LOCHNER to WEST COAST HOTEL, the court-packing plan and footnote #4, GOBITIS and BARNETTE. We also have Justice Holmes upholding convictions of minor dissidents in 1919 and coming to the defense of communist speech in 1925. Another measure of the change in this period is the widespread suppression of dissent in the 1916-25 era, followed by the selection in 1941 of a Solicitor General who was a member of both the ACLU and the NAACP. (Lest we see this as an unequivocal [*128] victory for the tradition of dissent, Feldman is quick to remind us of that the Solicitor General went on to defend Japanese relocation camps).
Feldman is right on the underlying tug of war between suppression and dissent in American culture. In his later chapters he cites a variety of public opinion polls showing American intolerance of dissent. He reminds us that in 1919 a young J. Edgar Hoover worked on compiling a list of 200,000 “political heretics” (p.254), at about the same time as the Department of Justice initiated 2,000 prosecutions for seditious libel (p.251). Feldman is also right to point out that political parties trade on these traditions for electoral advantage. Consider this speech by a Republican nominee for high office, castigating the Democratic party establishment:
They are all cynics who scoff at our simple virtues, particularly those simple virtues that you and I learned here in . . . . They think that the people and most of us are too dumb to understand. Their idea is that they, the intelligentsia, can govern us . . . . Give our country back to us. It belongs to us. We want it.” (p.327)
Was that Sarah Palin, John McCain, George W. Bush, Richard Cheney, or Ronald Reagan? The answer is none of the above; it was Wendell Wilkie speaking in 1940. Maybe recycling is one those great American political traditions.
Feldman is to be congratulated for his rigorous blending of judicial history, American history, and constitutional jurisprudence, all the while keeping dissent and suppression at the fore. For this reader, the lesson was clear. In a free society one function of law is to elevate speech in pursuit of the common good. Another function of law is to suppress speech in the pursuit of the common good. Feldman demonstrates the inevitability of that paradox; a comprehensive review of free expression in America should do no less.
Ackerman, Bruce. 1991. WE THE PEOPLE VOLUME 1: FOUNDATIONS. Cambridge: Harvard University Press.
COHEN v. CALIFORNIA, 403 U.S. 15 (1971).
LOCHNER v. NEW YORK, 198 U.S. 45 (1905).
MASSES PUBLISHING CO. v. PATTEN 244 F. 535 (S.D.N.Y. 1917), rev’d 246 F. 24 (2d Cir. 1917).
MINERSVILLE SCHOOL DISTRICT v. GOBITIS, 310 U.S. 586 (1940).
NEW YORK v. JOHN PETER ZENGER (1735). Available at http://www.law.umkc.edu/faculty/projects/ftrials/zenger/zenger.html
SCHENCK v. U.S., 249 U.S. 47 (1919).
WEST COAST HOTEL v. PARRISH, 300 U.S. 379 (1937).
WEST VIRGINIA STATE BOARD OF EDUCATION v. BARNETTE, 319 U.S. 624 (1943).
© Copyright 2009 by the author, Jerome O’Callaghan.