Politics or Principle? Zechariah Chafee and the Social Interest in Free Speech

I. Introduction The classic defense of free speech, long attributed to John Milton and the American Founders, has justified its protection on public grounds. Under this view, the First Amendment protects free speech to ensure the proper functioning of democratic selfgovernment by facilitating the spread of truth on important public matters.1 Over the past few decades, however, political and legal theorists have challenged this view, arguing instead that free expression is properly safeguarded for the sake of the individual.2 These theorists have deployed various types of arguments - philosophical, doctrinal, and historical - to support this interpretation of the First Amendment. The leading historical argument consists of a revisionist account of the origins of the democratic, public interest- based conception of free speech.3 Whereas First Amendment scholars traditionally traced the democratic theory back to the time of the Founders and even to the English Civil War,4 the revisionists contend that it was instead an innovation of the Progressive era. Jurists and intellectuals in the first decades of the twentieth century invented a theory based on the "social interest" in free speech for a democracy in order that its constitutional protection would be compatible with Progressive political ideology. In so doing, these Progressives, particularly Harvard Law Professor Zechariah Chafee (1885-1957), deliberately ignored a "conservative libertarian" tradition of legal thought that had actively promoted free speech as an essential component of individual autonomy. This revisionist historical account has been widely accepted by First Amendment theorists and historians alike.5 Nevertheless, I believe it is mistaken. This Article is thus an effort to revise the revisionists. It makes two historical arguments - one negative and one positive. It first seeks to show that the revisionist account, which has been most articulately expounded by Professor Mark Graber in his book Transforming Free Speech, is deeply flawed and insufficiendy supported by the historical evidence. Specifically, I argue that the extent and influence of the autonomy-based rationale for free speech has been somewhat exaggerated and that in reality, most nineteenth-century "conservative libertarians" paid only lip service to the topic. Furthermore, those who did discuss free speech in any depth justified its protection on public grounds. I then offer my own account of Zechariah Chafee's contribution to modern free speech tiieory, focusing particularly on his famous 1919 Harvard Law Review article, "Freedom of Speech in Wartime."6 Whereas the revisionists characterize that article as a product of Chafee's Progressive political ideology, I argue instead that Chafee is better understood as trying to resolve tensions in legal doctrine by analyzing more deeply the traditional conceptions of freedom of speech as they had functioned at common law. Although most scholars recognize that the democratic view has roots older than the twentiedi century, insufficient attention has been paid to the way in which Chafee's theory grew direcdy out of nineteenthcentury protections of speech in the private law of defamation. Thus, where the revisionists see a radical break, I suggest that diere has been doctrinal continuity through jurisprudential change. I further suggest that the democratic theory Chafee articulated during World War I may have particular relevance today when the government has once again made controversial efforts to control speech during wartime. Part II of this Article briefly surveys the current theoretical debate between democratic and autonomy dieorists of free speech. Part III summarizes the revisionist historical account as put forth by Professor Graber and dien shows why his diesis that nineteenth-century proponents of property rights were ardent advocates of free speech, despite its intuitive plausibility, does not ultimately widistand scrutiny. …