essays

Sep 1, 1982

The First Amendment: 1918-1928

“The intellectual turmoil of the period raised serious questions concerning the legitimate parameters of dissent in American society.”

Robert M. Cover
Yale Law School

“The Left, the Right, and the First Amendment: 1918–1928.” Maryland Law Review 40 (3) (1981): 349–388.

In the wake of World War I, American democracy felt itself severely challenged by explosive developments which were shaking the forms of political order around the world. With the political collapse of Europe, the struggle over the League of Nations, the Russian Revolution, and the rise of fascism, American democracy became a principal contender in a global struggle for ideas and power. At the same time, Americans at home felt increasingly threatened by what they judged as political ‘pathologies’ brought in from abroad by immigrants and intellectuals.

It fell to the Supreme Court, as the foremost articulator of American democratic principles, to frame a response to these challenges. The response had to occur on two levels. On the ideological level, it was necessary to mark distinctions between the American variant of capitalist democracy and the newly spawned foreign political ‘pathologies’—in other words, to describe and reaffirm America’s distinct mission and experience. On a practical level, it was crucial to delineate an effective defense against the political pathogens. For, while Europe was clearly the source of the disease, the very nature of the struggle—its articulation in the transnational terms of class or race warfare—was that of a potential civil war.

The conservatives and liberals on the High Court of that period addressed themselves to different aspects of these complex questions. For the conservatives, led by William Howard Taft, the disorderly politics of the street that had emerged in Europe and America after the war threatened not only property but civil society itself. The conservatives’ dedication to the elimination of private violence was most evident in the legal weapons they provided the federal courts against picketing and organization work by unions. Nonetheless, after 1919, these same conservatives were prepared to acquiesce in some parallel restraints against the radical right. Moore v Dempsey, for example, implicitly overruled Frank v Mangum and empowered federal courts in habeas corpus cases to pierce the record and determine independently of the state court whether a state trial was dominated by a mob.

The intellectual turmoil of the period raised serious questions concerning the legitimate parameters of dissent in American society. It was in this area that the liberals (Holmes and Brandeis) made their most important contributions. In his concurrence to Whitney v California, for example, Justice Brandeis began by characterizing the essential choice of political modes as being one between the “deliberative” and the “arbitrary.” The essay then validates a commitment to the deliberative mode as an act of the Founding Fathers to which an ongoing commitment is always necessary.

In advocating the widest possible freedom of expression, Brandeis acknowledged the danger of allowing calls to disorderly, nondeliberative change in politics. Nevertheless, in the face of this danger, the commitment to liberty required an act of courage demanded by the very structure of our politics. For Brandeis, law mediates the dichotomy between the deliberative and arbitrary, between reason and force in politics. It becomes justifiably arbitrary and coercive only by remaining the product of a truly deliberative process.

It is a measure of the distinction of the Taft Court that it posed to the country and to the world a basic dilemma: Is it possible to stop the coercive, violent forms of street politics without resorting to the arbitrary violence of the law? The conservatives had resolved to accept the force of law, the voice of the then dominant community groups. Justices Brandeis and Holmes, on the other hand, expressed a different faith and a resolve to have it both ways.