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Copyright 1983 University of Chicago.

University of Chicago Law Review

ARTICLE: The Emergence of Modern First Amendment Doctrine

FALL, 1983

50 U. Chi. L. Rev. 1207


David M. Rabban +



The emergence of modern first amendment doctrine in the years immediately following World War I is one of the most familiar developments in American constitutional history. Several postwar first amendment decisions by the United States Supreme Court are among the best known of all American cases. 1 Indeed, the opinions by Justices Holmes and Brandeis in these cases contributed heavily to their reputations as giants of their profession. The articles and book on free speech written between 1918 and 1920 by Zechariah Chafee, Jr., are similarly regarded as classics in the history of American legal scholarship. 2 The focus on these landmark decisions and scholarly classics, however, has diverted attention from other significant information which requires a reevaluation of the crucial period from the American entry into World War I through the Supreme Court's decision in Whitney v. California. 3

My suspicion that important gaps remained in understanding the development of postwar first amendment doctrine arose as an unexpected by-product of research into judicial and scholarly interpretations of the first amendment in the generation before World War I, a subject previously neglected by most scholars. 4 This research revealed that prewar decisions, including several by Justice Holmes, generally rejected free speech claims, often by refusing even to recognize or address them, and occasionally by relying on the possible "bad tendency" of the speech involved. The postwar opinions by Holmes in Schenck v. United States, 5 Frohwerk v. United States, 6 and Debs v. United States, 7 and by ...
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