The State of Free Speech Doctrine in 1917

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50 Ariz. St. L.J. 911 (2018). David M. Rabban.

Contrary to the assumption of most legal scholars and judges since 1917, there was substantial adjudication of free speech issues throughout the state and federal judicial systems in the late nineteenth and early twentieth centuries. The decisions overwhelmingly rejected free speech claims. No court was more hostile to them than the United States Supreme Court. The judicial hostility extended beyond any individual issue or litigant. Some of the most restrictive decisions were written by Oliver Wendell Holmes, Jr., first as a judge on the Supreme Judicial Court of Massachusetts and subsequently as a justice on the United States Supreme Court. The most common judicial analysis allowed the punishment of speech for its alleged “bad tendency.” A few decisions, mostly in the state courts, protected free speech, typically by limiting or rejecting the bad tendency approach. Decisions under the Espionage Act of 1917, passed by Congress soon after the United States entered World War I, extended the prewar restrictive tradition of reliance on the bad tendency of speech to deny free speech claims. But, as before the war, a few decisions limited or rejected evaluating the legality of speech by its alleged bad tendency. Judge Learned Hand’s decision in Masses Publishing Company v. Patten was one of those few decisions.

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