Chafee, Zechariah, Jr (b. Providence, R.I., 7 Dec. 1885; d. Cambridge, Mass., 8 Feb. 1957), educator, lawyer, writer, and civil libertarian. Chafee was the father of modern free speech law in the United States. A member of a comfortable New England family, he worked in the family's iron business for three years before entering the Harvard Law School. He immersed himself in sociological jurisprudence, and when he returned to teach, he took over Roscoe Pound's third‐year equity course. Pound's interest in injunctions against
libel intrigued Chafee, who prominently explored all pre‐1916 federal cases on the subject, concluding that free speech law was clearly in need of modernization. This development was strengthened in 1917 and 1918 by congressional enactment of wartime espionage and sedition laws. (See
Espionage Acts.) Their frequently arbitrary enforcement persuaded Chafee of the importance of clarifying the speech and press provisions of the
First Amendment, something he set out to do in a controversial 1920 book,
Freedom of Speech. He argued for a healthy openness of expression even in wartime, with speech curtailed only when the public safety was seriously imperiled. Chafee appreciated the views set forth by Judge Learned
Hand in the
Masses case of 1917, where Hand had attempted to establish that the test for suppressing expression was “neither the justice of its substance, nor the decency or propriety of its temper, but the strong danger it would cause injurious acts.”
Few people in positions of power shared Chafee's confidence in the open democratic process. Thus, his criticism of Oliver Wendell
Holmes's initial
“clear and present danger” construct in
Schenck v. United States (1919) was itself criticized by conservative leaders. Nonetheless, Chafee persisted, setting out to persuade Holmes that the true test for free speech should be the power of the expression to get itself accepted in the competition of the marketplace of ideas. Accepting Chafee's argument, Holmes incorporated it in his dissent in
Abrams v. United States (1919), hoping to set a national policy that would encourage a search for truth yet maintain a balance of social and individual interests.
Chafee was highly critical of the Court's restrictive opinion and its unwillingness to accept Holmes's view. Such criticism led to an unsuccessful move by conservative alumni to oust Chafee from the Harvard Law School.
Chafee's later involvement with the Supreme Court was at once peripheral and direct. A generation of young civil libertarians in the 1920s embraced his First Amendment views. This had a liberalizing effect on Holmes's and Brandeis's dissents, not only in
Abrams, but in
Gitlow v. New York (1925) and
Whitney v. California (1927). Indeed, Brandeis used
Freedom of Speech extensively in preparing his influential concurring opinion in
Whitney, an opinion that contained the last and most speech‐protective of the two justices' various restatements of the danger test. Eventually, the Court majority used the test in the 1930s and 1940s to void local ordinances against the distribution of leaflets and contempt of court by newspapers. Similarly, Chafee viewed the 1937
DeJonge v. Oregon decision as an important broadening of the protection of freedom of assembly. As coauthor of the brief that the American Bar Association's Committee on the Bill of Rights submitted in that case, he later used it to attack the repressive anti‐union behavior of Mayor Frank Hague of Jersey City (see
Hague v. CIO, 1939). The ABA committee participated as amicus curiae in subsequent civil liberties cases, with Chafee as a major draftsman. He later described his committee service as “one of the most absorbing and fruitful things I have ever done.” When he chaired the committee, he threw himself into the early 1940s cases involving the Jehovah's Witnesses' refusal to have their children participate in a compulsory flag salute. When the committee decided in
West Virginia State Board of Education v. Barnette (1943) to seek reversal of the
Minersville School District v. Gobitis case of 1940, Chafee drafted the brief. The Court ultimately accepted its logic in reversing the earlier upholding of the salute. Making an eloquent plea for freedom of religion and freedom of expression, he was particularly pleased to see Justice Robert
Jackson's opinion couple the
preferred freedoms concept with the clear and present danger test to protect the individual against arbitrary actions by the state.
In 1947, Chafee left the committee after being named to the United Nations Subcommission on Freedom of Information and the Press. There, as in his service to the committee, he nudged the organization, as he had the Supreme Court, into a newly assumed role of champion of free expression. In his later days, Chafee taught and wrote widely in the area of human rights. His 1956 book
The Blessings of Liberty portentously stressed the dangers of economic inequality to the full operation of the marketplace process and advocated the elimination of arbitrary obstacles to full free expression.
See also
First Amendment;
Speech and the Press.
Paul L. Murphy
