| This thesis offers a new interpretation of the modern constitutional defense of free speech. Previous scholarship has assumed that this defense emerged immediately after World War One when Zechariah Chafee, Jr., (assisted by Oliver Wendell Holmes, Jr., and Louis Brandeis) translated the libertarian claims of John Milton and John Stuart Mill into constitutional law. I believe that a close examination of free speech arguments made between 1870 and 1941 reveals that the constitutional defense of free speech was transformed, and did not simply emerge. In those years, a late nineteenth century conservative tradition was supplanted by a newer, progressive one. Chafee did not develop or popularize the constitutional defense of free speech; he developed and popularized a new constitutional defense of free speech, one that was consistent with the philosophical and jurisprudential premises of progressive and New Deal thought. His writings inspired a paradigm shift in the constitutional defense of free speech, from a model which treated free speech as an aspect of the general right of individual liberty protected by the due process clause of the Fourteenth Amendment, to a model which treats free speech as a democratic procedure protected by the First Amendment. In the process of this transformation, radical alternatives which focused on the constitutional links between economic arrangements and free speech rights were foresworn.;This thesis emphasizes the intellectual origins of the modern constitutional defense of free speech. However, my concerns transcend particular historical details. I also hope to shed light on the general issue of how constitutional doctrines evolve, and on the specific issue of how the modern constitutional defense of free speech ought to evolve. |
