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The Florida Bar Journal
October, 2002 Volume LXXVI, No. 9
The Origination and Early Development of Free Speech in the United States: A Brief Overview

by Michael Kahn

Page 71

The First Amendment guaranty of freedom of speech is one of the most revered cornerstones of American society. The full text of the amendment reads: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or of the right of the people peaceably to assemble and to petition the government for a redress of grievances.”1 Historically, what were the origins of free speech theory in the United States and how did the concept of freedom of speech expand to its present scope? This article will briefly explore the origination and early development of free speech theory and practice in the United States.

Most scholars agree that the American political concept of free speech as embodied in the First Amendment originated with the British. However, in the 17th and 18th centuries the intellectual heritage of free speech was diverse. The 17th century Dutch philosopher Benedict de Spinoza (1632–1677), whose philosophy was well known in the colonies, believed that liberty of speech was based upon an “indefeasible natural right” of individuals.2 Spinoza qualified his support of liberty of speech with the caveat that in some instances government could punish speech if a man spoke opinions “which by their very nature nullify the [social] compact.”3 The French philosopher Montesquieu (1689–1755) believed in the distinction between speech and overt action. In his monumental work, The Spirit of the Laws, he wrote: “The laws do not take upon them to punish any other than overt acts . . . . Words do not constitute an overt act; they remain only an idea.”4

Thomas Jefferson drew from the precepts of the British philosopher John Locke when he penned the Declaration of Independence.5 Locke eloquently spoke of man’s inalienable rights to life, liberty, and pursuit of property.6 He was an adherent of the Social Compact theory of government by which a free and independent man gave up unfettered freedom (and anarchy) for the order and security of civilized government.7 Thus, in advocating the Social Contract theory, Locke at once established the concept of certain unalienable rights inherent to man as well as a theory of government other than divine right.8 Further, Locke advocated the right of revolution if the government, established by the consent of the governed, should tyrannize its citizens, thus breaking the contract.9

Certainly the understanding of free speech that the framers of the Constitution and the Bill of Rights had was taken largely from the scholarship of Sir William Blackstone.10 He was one of the most ardent early advocates of free speech and, perhaps, its foremost spokesperson in 18th century England. An oft-quoted passage from Blackstone’s Commentaries on the Law of England is thought to have formed the basis of the inchoate American colonial concept of free speech. Blackstone observed that

[t]he liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publication and not in freedom from censure for criminal matter when published. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal he must take the consequences of his own temerity.11

It is significant to note that Blackstone excepted certain categories of utterances as not being included in protected speech, including speech that was “blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels.”12 This led to the early distinction which became rooted in American law between prior restraint and subsequent punishment, the definition and elucidation of which distinction an entire series of lectures could easily be composed. Suffice to say, the distinction between prior restraint and subsequent punishment has suffered the vicissitudes of American jurisprudence but has recently been firmly reemphasized by the U.S. Supreme Court.13 Blackstone certainly recognized the difference between prior restraint and subsequent punishment when he wrote in his commentaries that

[t]he liberty of the press . . . consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. . . . To subject the press to the restrictive power of a licensor [is] to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty.14

The Supreme Court of the United States blurred the distinction between prior restraint and subsequent punishment beginning with its decision in Near v. Minnesota, 283 U.S. 697 (1931), in which it correctly observed, as with the fact pattern in Near, that some subsequent punishments operate to chill speech and, therefore, also constitute prior restraint. In more recent decisions, the court is reinforcing the distinction between prior restraint and subsequent punishment. For example, in the case of Alexander v. United States, 509 U.S. 544, 553–54, 566 (1993), the majority noted that the petitioner had attempted to dismiss the distinction between prior restraint and subsequent punishment as neither meaningful nor useful. The court opined that the distinction was “crucial to our First Amendment jurisprudence.” Thus, the Supreme Court has recently held that the First Amendment provides much greater protection from prior restraints than from subsequent punishment, originating no doubt from William Blackstone’s earliest pronouncements regarding the doctrine of free speech.15

Let us not mistake our English forefathers, however; their feet certainly were made of clay. The earliest English history and jurisprudence reveal a deep-seated fear by the church and crown of free speech, which was exacerbated when in 1476 William Caxton set up the first printing press at Westminster and published the first book in England.16 Authorities of the church and crown worried, probably correctly in retrospect, that the twin “evils” of heresy and insurrection would be furthered by widespread publications and corresponding dissemination of information.17 Generally speaking, the British crown used three methods to suppress free speech: licensing, constructive treason, and seditious libel.18 Licensing was the original system of “prior restraint.” Soon after the first book was printed in England, the crown empowered the Stationer’s Company, whose approval was necessary for publication. An appointed licensor of the Stationer’s Company could censor the work and could in his sole discretion deny or approve the license necessary for publication.19 This system of licensing remained until spring 1695 when the legislation expired not because of any enlightenment with regard to free speech, but because of its impracticality.20 In 1710, the Statute of Anne first gave to individual authors limited rights to their publications for a period of time.21

The legal theories of constructive treason and seditious libel were also utilized to curtail free speech. The law of constructive treason derived from the Statute of 25 Edward III (1352).22 Constructive treason consisted of either imagining the king’s death, levying war against the king, or adhering to his enemies.23 This law was extended to printed works, with one of the most egregious prosecutions occurring in the case of John Twyn. In a book that he was preparing for publication, Twyn had the temerity to suggest that the king was accountable to the people who were entitled to self government. For this radical notion, he was convicted of constructive treason, hanged, drawn, and quartered.24

The seeds of seditious libel originated in a collection of laws known as Scandalum Magnatum, which was passed in 1275 and outlawed any speech that contributed to discord between the king and his people.25 Sir Edward Coke, as attorney general, reported to the infamous Star Chamber in a case in 1606 that libel of a government official is a greater offense than a private libel and even a true libel may be punished.26 Coke was another jurisprudential icon of his day, whose work was required reading for 18th century American lawyers, including Thomas Jefferson.27 The theory behind seditious libel was set forth by Chief Justice Holt in 1704 when he said that “if people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments, that the people should have a good opinion of it.”28 The jury’s role in trials for seditious libel was restricted to ascertaining whether the speech was published; judges ruled whether the speech was libelous.29

The British colonists who settled America desired to enlarge the right of free speech. The celebrated case of John Peter Zenger in 1735 is representative. He was the publisher of the New York Weekly Journal and was charged with seditious libel by the governor of New York. His lawyers, Andrew Hamilton and James Alexander, argued that the truth of his critical statements against the governor general should be a defense and that the jury and not the judge should adjudicate criminal intent. Although these novel (to the British) tenets were rejected by the trial judge, the jury set Zenger free.30

In literal and figurative revolt from the oppressive tactics of the British after the Revolution, the young nation expanded the notion of free speech but at the same time the vestiges of English suppression remained. James Madison boldly introduced his original version of the First Amendment in the Bill of Rights in 1789 by stating: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”31

However, some scholars have interpreted early American jurisprudence regarding freedom of speech as nothing more than a reiteration of the Blackstonian concept which embraced the pernicious laws concerning seditious libel.32 As libertarian and historian Leonard Levy concluded when commenting upon the subject,

Freedom of speech and press, as all the scattered evidence suggests, was not understood to include a right to broadcast sedition by words. The security of the state against libelous advocacy or attack was always regarded as outweighing any social interest in open expression, . . . .

He reluctantly concluded that the First Amendment did not repudiate Blackstone but left the law of seditious libel in force.33

Since we, like all cultures, have idealized our founding forefathers, it may dismay some to realize that the record of the framers of our Constitution is not unblemished with regard to freedom of speech, especially during and immediately after the Revolutionary War.34 For example, the acknowledged author of the First Amendment, James Madison, did not support a Bill of Rights either when he endeavored to become one of Virginia’s first two U.S. senators or when he ran for the House of Representatives.35 Only after he lost these two elections did a then philosophically enlightened Madison become a staunch supporter of the Bill of Rights.36 Thomas Jefferson urged state courts to use state sedition laws against his political opponents.37 With Jefferson’s support, the Virginia legislature in 1777 passed a bill requiring “loyalty oaths,” the purpose of which was to punish a person who was “a traitor in thought, but not in deed” according to Jefferson.38 In this endeavor he also had the support of George Washington.39

In 1798, the Federalist government of the United States of America passed four related pieces of legislation known as the Alien and Sedition acts, which were reminiscent of British laws proscribing seditious libel.40 Ostensibly, the legislation was caused by rising tensions with France which many thought foreshadowed war.41 However, the Federalists also did not care for the level of insult hurled at President Adams and even at the venerable George Washington by the press.42 The fourth section of the legislation was the infamous Sedition Act, which prohibited the publication of

[f]alse, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the president of the United States, with the intent to defame [them]; or to bring them [into] contempt or disrepute.43

The act provided that truth would be a defense and that the accused would have the right of a jury trial.44

Jefferson, apparently having a change of heart on the subject, and James Madison helped to pass the Virginia and Kentucky resolutions in fierce opposition to the Alien and Sedition acts.45 In large part his vigorous opposition to the alien and aedition acts led to Jefferson’s electoral victory in the hotly contested presidential election of 1800.46 In his 1801 inaugural address, Jefferson defended the freedom of the press and stressed the necessity of preserving the liberties of thought and speech for all citizens.47

After these tumultuous early years in our nation’s history, the status of freedom of speech remained fairly quiescent in American jurisprudence for over 100 years. However, in a series of remarkable cases originating in the early 20th century, Justices Holmes and Brandeis fashioned in large part the modern theory of American freedom of speech, incurring some modern criticism for their liberality.48 The cases interpreted legislation passed in the World War I era. For example, the Espionage Act of 1917 was similar to the Alien and Sedition acts of 1798 and earlier British legislation punishing seditious libel. The act prohibited any action causing insubordination in the military and naval forces of the United States or obstructing recruiting and enlistment service of the United States.49

In one of the most notable cases in the history of the Supreme Court, Schenck v. United States, 249 U.S. 47, 48–49 (1919), the United States alleged that defendant Schenck prepared leaflets urging men who had been drafted to resist. These leaflets were sent through the mail to men eligible for the draft. Although Justice Holmes, writing for the court, upheld the Espionage Act and Schenck’s conviction, in that decision he set forth the foundation of modern American theory of freedom of speech. Besides fashioning several phrases which became American catch words, Justice Holmes began by differentiating American theory of freedom of speech from the limitation of Blackstonian thought when he said that “[i]t well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose. . . .”50

Holmes also distinguished speech uttered in times of war with that in peace, saying:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been in their constitutional rights. But the character of every act depends on the circumstances in which it is done. . . . (citation omitted) . . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantiative evils that congress has a right to prevent.51

With profound strokes of his pen, Justice Holmes dramatically enlarged the parameters of freedom of speech in the United States. Over a period of time, the Supreme Court began to consistently rule that the First Amendment was not limited to merely prohibiting prior restraints. The government could only punish speech when it constituted a clear and present danger.

Holmes followed his opinion for the majority in Schenck with a ringing dissent in Abrams v. United States, 250 U.S. 616, 617 (1919). Once again the subject legislation involved in the Espionage Act of 1917 and its prohibition for any individual to unlawfully utter, print, write and publish “disloyal, scurrilous and abusive language about the form of government of United States” or language “intended to bring the form of government of the United States into contempt, scorn, contumely, and disrepute.”52 The five defendants in Abrams were Russian-born immigrants who printed and distributed circulars that brought into ill repute the U.S. government’s involvement in the Russian Revolution as well as the president’s “cowardly silence” about the actions of the U.S. government in Russia. While the court affirmed the conviction of the defendants, Holmes dissented. Focusing on his clear and present danger analysis in Schenck, Holmes stated that no one could suppose that the “surreptitious publishing of a silly leaflet by an unknown man” would present any clear and present danger of disrupting the government’s war effort.53 Justice Holmes warned that

[w]e should be eternally vigilant against attempts to check the expression of opinions that we loath and believe to be frought (sic) with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that at an immediate check is required to save the country.54

Justice Brandeis often joined in Holmes’ dissents. Even when Brandeis concurred with the Supreme Court’s ruling such as in the case of Whitney v. California, 274 U.S. 357, 375, 377 (1927), he struck a vigorous defense for free speech. Hearkening back to the liberties for which our founders risked their lives, Brandeis wrote:

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and . . . [t]hey believed liberty to [be] the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; . . . that the greatest menace to freedom is an inert people; that public discussion is a political duty . . . . If there be time to discover through discussion the falsehood and the fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech not enforced silence.

Preeminent constitutional scholars generally agree that much of the expansive protection afforded to free speech in the United States today originated from the prescient and foresightful First Amendment work of Justices Holmes and Brandeis.55

Thus, we have seen that protection of free speech in the United States certainly has increased from its relatively modest origins. Now, jurists must evaluate free speech theory in light of inventions such as the Internet with its global perspective which were, of course, unknown to First Amendment framers. Furthermore, after the tragic events of September 11, 2001, the people of the United States have to face perhaps new limitations on freedom of speech for the sake of homeland security. History has proven the First Amendment, thus far, able to meet the challenges of wartime peril and peacetime prosperity. Hopefully, our commitment to liberty and our maturation as a society can embellish the legacy of the United States as the one country above all others in history which has continually striven for and realized the cherished ideal of freedom for its people.

1 Bill of Rights, Amendment 1 (1791).
2 1 R. Elwes, The Chief Works of Benedict de Spinoza 258 (1951); Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 Colum. L.Rev. 91, 110 (1984). Spinoza thought that “[i]t is impossible to deprive men of the liberty of saying what they think.” Elwes, supra, at 264; Mayton, supra, at 110. Government “should merely have to do with actions and every man should think what he likes and say what he thinks.” Elwes, supra, at 265; Mayton, supra, at 110.
3 “For instance, a man who holds that the supreme power has no rights over him,” Spinoza believed, could be punished “not so much from [the] actual opinions” but because of the danger to the stability of government that actions based upon the opinions could cause. Elwes, supra note 2, at 260; Mayton, supra note 2, at 110.
4 Along with many of his contemporaries, he feared legislation against speech because of its indeterminacy which would permit broad discretionary power by government. Actions are another matter, Montesquieu believed: They can be detected by the five senses and “are exposed to the eye of the public; and a false charge with regard to matters of fact may be easily detected.” C. Montesquieu, The Spirit of the Laws 193–194 (T. Nugent trans., 1949); Mayton, supra note 2, at 110.
5 Sir Earnest Barker, Introduction to Social Contract xiv, xix (1968); Lowenthal, No Liberty for License 43–45 (1997).
6 As Levy points out, Locke’s concept of property encompassed more than material goods. In his Second Treatise on Government, Locke remarked that “people united for the general purpose of the preservation of their lives, liberties and estates, which I call by the general name-—property.” By property, Locke added “I must be understood here as in other places to mean that property which men have in their persons as well as goods.” Levy, Origins of the Bill of Rights 251–252 (1999); Lowenthal, supra note 5, at 49–50; 1 The Great Political Theories 359–360 (Curtis ed., 1981).
7 In his Second Treatise on Government, Locke described this idyllic state of nature as “a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man . . . . .” John Locke, Second Treatise on Civil Government ch. II, §4. According to Locke, man gave up his unfettered freedom to preserve his property. Second Treatise on Civil Government at ch. VII, §87.
8 Locke was a proponent of the concept of government by the consent of the governed rather than by divine right. He believed that “[m]an being . . . by nature all free, equal, and independent, no one can be put out of his estate and subjected to the political power of another without his own consent, which is done by agreeing with other men, to join and unite into a community for their comfortable, safe, and peaceable living, one amongst another, in a secure enjoyment of their properties, and a greater security against any that are not of it.” John Locke, Second Treatise on Civil Government ch. VIII, §95.
9 Locke believed that the social contract could be nullified by government breaching trust with the people who consented to be governed. In that case, sovereignty would devolve back to the people that originally surrendered it in the state of nature. John Locke, Second Treatise on Civil Government ch. XIX, §§219, 222.
10 Levy, Emergence of a Free Press 12 (1985); Van Alstyne, First Amendment, Cases and Materials 18–19 (1995).
11 William Blackstone, Commentaries on the Laws of England bk. 4, ch. II, 150–153 (1765–1769).
12 Id.
13 Consider the case of Hugh Singleton, who in 1579 had enraged Queen Elizabeth I with the contents of a certain tract that he had published. In one of the early incidences of a combination of prior restraint and subsequent punishment, the printer Singleton was condemned to lose his right hand, which would not only have been a punishment but almost certainly would have restrained his future endeavors as a printer. F. Siebert, Freedom of the Press in England 1476-1776 91–92.
14 Blackstone, supra note 11, at bk. 4, ch. II, 150–153.
15 Southeastern Promotions Ltd. v. Conrad 420 U.S. 546, 558–559 (1975).
16 Siebert, supra note 13, at 22. There were later accounts that claimed printing was first introduced in England in 1468 at the behest of Henry VI. Id.
17 Siebert, supra note 13, at 25; Koenigsberg, Understanding Basic Copyright Law 1994, Copyrights 10.
18 Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 Stan. L. Rev. 661, 666–672 (1985).
19 Siebert, supra note 13, at 238–43. Under the Printing Act of 1662, the licensor was required to testify that nothing contained in the book he examined was “contrary to Christian faith or the doctrine or discipline of the church of England or against the state or government of this realme or contrary to good life or good manners.” Siebert, supra note 13, at 243.
20 Hamburger, supra note 18, at 714, 719.
21 8 Ann. c. 21; Siebert, supra note 13, at 249.
22 25 Edw. III, st. 5, cap. 2 (1352); Hamburger, supra note 18, at 666.
23 25 Edw. III, st. 5, cap. 2 (1352).
24 Rex v. Twyn, 84 Eng. Rep. 1064 (K.B. 1663); Mayton, supra note 2, at 101.
25 Hamburger, supra note 18, at 668.
26 Case de Libellis Famosis, 77 Eng. Rep. 250, 5 Coke 125 (1605); Hamburger, supra note 18, at 693–695. Since a “true” libel is harder to disprove than a “false” libel, which would appear to be fairly self evident, thus was born the phrase attributed to Sir Edward Coke that “the greater the truth the greater the libel.” Levy, supra note 10, at 7.
27 Cunningham, In Pursuit of Reason: The Life of Thomas Jefferson 8 (1993).
28 Rex v. Tutchin, 90 Eng. Rep. 1133, Holt 424 (Q.B. 1704); 14 Howell’s State Trials 1095, 1128 (1704); Lord Chief Justice Holt changed the law of libel by punishing general criticism of the government as seditious libel. Hamburger, supra note 18, at 735–37.
29 Hamburger, supra note 18, at 753.
30 J. Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger 58 (Katz ed., 1972) (1736); Levy, supra note 10, at 37–44.
31 Annals of Congress, 1st Cong., 1st sess. 451; Levy, supra note 10, at 251.
32 The debate about the first amendment concerns whether the framers meant the amendment to embrace Blackstonian free speech which punished seditious libel, as Levy suggests, or to abolish seditious libel outright, as Chafee believed. Levy’s conclusion seems more plausible because, among other reasons, of the framer’s emphasis on state’s rights. Prosecutions for libel continued in the states after the adoption of the First Amendment. Chafee, Free Speech 9–14, 34–39 (1920); Levy, supra note 10, at xii, 185–186, 269.
33 Leonard Levy, Legacy of Suppression 237, 247–48 (1960); Lowenthal, No Liberty for License 14 (1997).
34 Levy states that during this period our founding fathers conformed to the adage that “in time of war the laws are silent.” Levy, supra note 10, at 173.
35 William Dudley, The Bill of Rights: Opposing Viewpoints 42 (1994).
36 Dudley, supra note 35, at 41; Levy, supra note 10, at 255.
37 Dudley, supra note 35, at 54.
38 Leonard Levy, Jefferson and Civil Liberties 30 (1964).
39 Levy, supra note 38. In 1781, Governor Jefferson ordered the inhabitants of “Gloucester and York Counties” placed in prison because of speech which was “disaffected to the independence of the United States.” Levy, supra note 38.
40 Levy, supra note 10, at 300; Mayton, supra note 2, at 122.
41 The Treaty of Paris between England and her former colonies worried the French. The French foreign minister Talleyrand solicited a bribe to avoid war. The discovery of this attempt led to rampant anti French fervor in the United States. Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties 5–14 (1956); Cunningham, supra note 27, at 212–14.
42 Publisher James Callender called Washington and President John Adams “poltroons” and “venal” and Adams a liar whose administration was a “scene of profligacy and . . . usury.” Federalist journalist William Cobbett labeled his political opponents as “frog-eating, man-eating, blood-drinking cannibals” and the “refuse of nations.” Wharton, State Trials of the United States During the Administrations of Washington and Adams 689, 322–32 (1849); Berns, 1970 Supreme Ct. Rev. 109, 111–12.
43 1 Stat. 596 (1798) §2.
44 Section 3 of the Sedition Act reads: “And be it further enacted and declared, That if any person shall be prosecuted under this act, for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.” Gragg, Order v. Liberty, Am. Hist. (Oct. 1998).
45 The Mind of the Founder: Sources of the Political Thought of James Madison 297–352 (Meyers ed., 1973); Cunningham, supra note 27, at 216–19. In a minority report to the Virginia Resolution, John Marshall supported the alien and sedition acts. He contended that obedience to government required that citizens have a good opinion of it. 2 Beveridge, The Life of John Marshall 402 (1916); Berns, 1970 Supreme Ct. Rev. 109, 133; Lowenthal, supra note 5, at 14–15. It appears that Jefferson was not supporting freedom of speech but the proposition that while the national government could not punish seditious speech, the states could. Berns, 1970 Supreme Ct. Rev. 109, 135.
46 Roseboom, A Short History of Presidential Elections 11–19 (1967). Ironically, shortly after Jefferson was elected, editor Croswell was indicted in New York under state law for libeling Jefferson. He was defended by Alexander Hamilton, Jefferson’s lifelong political opponent. Hamilton’s theory that the liberty of the press “consisted in publishing with impunity, truth with good motives, and for justifiable ends whether it related to men or to measures” eventually became accepted in all jurisdictions. People v. Croswell, 3 Johns 336, 352; Levy, supra note 10, at 338–39; Berns, 1970 Supreme Ct. Rev. 109, 153.
47 Jefferson said, “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it.” Cunningham, supra note 27, at 239–40; Gragg, supra note 44.
48 In 1925, the Supreme Court confirmed the conviction of Gitlow for being a member of the Socialist Party which advocated the violent overthrow of the government. Holmes and Brandeis dissented, stating that “[i]f in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” Gitlow v. New York, 268 U.S. 652, 673 (1925). Lowenthal believes that the foregoing “may well be the single most disgraceful sentence in our jurisprudence.” Lowenthal, supra note 5, at 35.
49 Schenck, 249 U.S. at 50.
50 Patterson v. Colorado, 205 U.S. 454 (1907); Schenck, 249 U.S. at 52.
51 Schenck, 249 U.S. at 52.
52 Abrams, 250 U.S. at 620, 628.
53 Holmes stated that men “may come to believe . . . that the ultimate good desired is better reached by a free trade and ideas—that the best of truth is the power of the thought to get accepted in the competition of the market . . . “ Abrams, 250 U.S. at 630. Holmes here references the market place of ideas theory espoused by John Stuart Mill. See, generally, John Stuart Mill, On Liberty (1859).
54 See, e.g., Sunstein, Democracy and the Problem of Free Speech 23–24 (1993).

Michael Kahn is vice chair of the First Amendment Law Committee of the Public Interest Law Section. He obtained his law degree from Duke University and has a master of liberal arts from Emory University. Mr. Kahn is a sole practitioner in Melbourne. He is a certified circuit court mediator who has limited his mediation practice to first amendment issues. An adjunct professor at Rollins College teaching computer law, ethics and First Amendment law, he was the 2002 winner of the Christa McAuliffe Teaching Award.

This column is submitted on behalf of the Public Interest Law Section, Gerard F. Glynn, chair.

[Revised: 02-10-2012]