Book Review

In 1923 New York City authorities shut down a production of Sholem Asch's "God of Vengeance," a play in which the central character is a Jewish brothel owner who attempts unsuccessfully to prevent his daughter from becoming a prostitute. The producers were convicted of staging "an obscene, indecent, immoral and impure drama . . . which tends and would tend to the corruption of the morals of youth or others." After the Appellate Division upheld the verdict in June 1924, the producers asked the American Civil Liberties Union for assistance in carrying their case to the Court of Appeals. The requests were made by two libertarian lawyers: Harry Weinberger (the play's manager), who had represented the anarchists Emma Goldman and Jacob Abrams in World War I conscription and sedition act cases, and Theodore Schroeder, who had founded the Free Speech League in 1902. The ACLU, however, rejected the requests. "The issue in the case," Roger Baldwin said "is not primarily one of freedom of opinion--it is one of censorship on the ground of morality," and such censorship "has been accepted for several centuries" (312). In any event, the Court of Appeals later overturned the conviction on purely technical grounds.	1
The case illustrates a crucial theme in David M. Rabban's important book, a work that fundamentally alters the way scholars will think about the emergence of free speech thought and jurisprudence. Through careful, exhaustive research, Rabban demonstrates the existence in the late-nineteenth and early twentieth centuries of a broadly based, principled defense of freedom of expression in art and morals, as well as in politics, that was later replaced by the ACLU's "narrower conception of constitutionally protected speech" and was soon forgotten entirely. As Rabban writes: "The more visible and ultimately more successful defense of political speech by the ACLU following World War I obscured the broader prewar conception of free speech supported by the Free Speech League as well as the League's distinctive and deeply rooted ideology of libertarian radicalism" (76).	2
Harvard Law School Professor Zechariah Chafee Jr. played a central role in obscuring that libertarian tradition and the ideology that supported it. According to Rabban, Chafee's classic Freedom of Speech (1920) was more a work of advocacy than of scholarship. Seeking to defend radicals who had been targets of the wartime espionage, sedition, and criminal anarchy acts, Chafee focused exclusively on the protection of political expression. So instead of positing free speech as "a natural right of autonomous individuals," as the libertarians did, Chafee emphasized its contribution to democratic government. And instead of admitting that the existing judicial tradition was highly restrictive and based on a pervasive . . . hostility to virtually all free speech claims," Chafee labored to prove that Justice Oliver Wendell Holmes's "clear and present danger" formulation in Schenck v. United States (1919) provided a reasoned basis for extending protection to free speech. Chafee's account, Rabban concludes, was "seriously misleading"; it was, in fact, "part of a disingenuous attempt to create a protective interpretation of the First Amendment out of a restrictive past" (5, 7).	3
In discussing that restrictive past, Free Speech in Its Forgotten Years provides a superb guide to significant yet often-ignored controversies that arose in the years from the 1870s to the outbreak of World War I. Rabban analyzes the use of the federal "Comstock" Act of 1873 to prosecute Ezra Heywood, the author of Cupid's Yokes, a pamphlet advocating free love, and Moses Harmon, publisher of Lucifer: The Light-Bearer, a journal which called for "free press, free rostrum, free mails . . . free land, free homes, free food, free drink, free medicine, free Sunday, free marriage and free divorce" (42). Rabban also assesses the Industrial Workers of the World's free speech fights, twenty-one of which occurred between 1909 and 1913. Pointing out that these struggles raised questions regarding access to public property and the distinction between speech and action, Rabban concludes: "To a significant extent, the issues and categories of analysis that arose during the free speech fights are similar to those that dominate current interpretation of the First Amendment" (78).	4
Drawing on a rich variety of sources, published and unpublished, Rabban offers an insightful, original account of Holmes, Learned Hand, and Louis D. Brandeis. In addition, the author discusses important Progressive intellectuals, such as John Dewey and Herbert Croly, whose views on free speech have generally been overlooked. Finally, Rabban examines five seminal figures: Thomas Cooley, author of Constitutional Limitations (1868); Theodore Schroeder, author of Free Speech for Radicals (enlarged ed., 1916); and law professors Ernst Freund, Henry Schofield, and Roscoe Pound, all of whom developed views on freedom of speech before 1917 that contrasted sharply with the restrictive judicial outlook. Despite important differences in tone and emphasis, all five writers emphasized "that the American constitutions precluded the punishment of speech on matters of public concern for its alleged bad tendency" (178).	5
In a final chapter, Rabban examines what he terms the "current parallels to prewar progressive thought," that is, the criticism of speech-protective Supreme Court rulings "from the politically committed left," criticisms which exhibit "strong, although largely unacknowledged, parallels to arguments made by progressive intellectuals in the decade immediately preceding World War I" (381). What he has to say about these matters is well reasoned and persuasive, but Rabban's truly significant contribution--one that places all scholars in his debt--has been to rescue an unremembered era that saw not only the development of seminal ideas regarding the First Amendment but also the emergence of highly contested conflicts over its meaning.	6
Richard Polenberg Cornell University

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