CHAFEE, ZECHARIAH, JR.

As a leading U.S. legal scholar and educator, Zechariah Chafee Jr. did more than anyone else in the early twentieth century to shape the debate surrounding freedom of speech and the Constitution's first amendment. In his most influential book, Freedom of Speech (1920), Chafee argued for the importance of protecting free speech even in wartime. His ideas later guided the Supreme Court in liberalizing its approach to free speech.

Chafee was born on December 7, 1885, in Providence, Rhode Island, to a wealthy family. He attended Brown University, graduating with a bachelor's degree in 1907. He helped manage his family's iron foundry for three years and then left to attend Harvard Law School in 1910. He remained on the family firm's board of directors for the rest of his life. He married Bess Frank Searle in 1912 and they had four children.

While at Harvard he was influenced by the theories of sociological jurisprudence presented by roscoe pound and others. At Harvard, he also met Harold J. Laski, a political scientist and later a leader of England's Labour party, who became a lifelong friend. Chafee graduated from law school with a bachelor of laws degree in 1913 and practiced law for three years in Providence. In 1916 he began teaching at Harvard Law School as an assistant professor of law. He accepted a full professorship three years later and remained at Harvard for the rest of his life.

Chafee was a professor at Harvard Law School for nearly forty years. His writings and public service influenced many different areas of civil liberties, from conditions for mine workers to international human rights to the system for apportioning U.S. House seats among the states. His other books include America Now (1938), Freedom of Speech in the United States (1941), Government and Mass Communications (1947), Documents on Fundamental Human Rights (1951), Freedom of Speech and Press (1955), and Blessings of Liberty (1956). Justice felix frankfurter wrote of Chafee, "The extent to which … he influenced the thought and temper of public opinion and action in that pervasive aspect of national life known as civil rights has no match in the legal professoriate."

Chafee's goal in his legal writings was to "master the law and reduce it to reason." In the area of free speech, this meant replacing intuition with reason and producing a rational interpretation of the First Amendment, which states that "Congress shall make no law … abridging the freedom of speech, or of the press." The notion of balance was a crucial element in his legal philosophy. According to Chafee, most legal problems could be solved by balancing competing interests. In the case of free speech, that meant balancing society's competing interests in the benefits of security and in the benefits of unlimited discussion.

"Nothing adds more to men's hatred for government than its refusal to let them talk, especially if they are the type of person anarchists are, to whom talking a little wildly is the greatest joy of life."
—Zechariah Chafee Jr.

Chafee's interest in free speech and civil liberties began while he was teaching a course on equity at Harvard Law School during world war i. He became interested in the history of libel law and free speech, particularly as judges across the United States began making arbitrary and often conflicting decisions regarding sedition (the act of urging others to rebel against authority) and free speech during wartime. In many cases, people who spoke out or demonstrated against the wartime policies of the U.S. government were imprisoned for their views. Such cases often involved two laws passed by Congress, the espionage act of 1917 (ch. 30, 40 Stat. 217) and the Sedition Act of 1918 (ch. 75, 40 Stat. 553). Looking closely at the judicial decisions regarding such cases, Chafee began to see that laws regarding freedom of speech were in great need of modernization.

Between 1918 and 1920 Chafee published two articles—"Freedom of Speech" in the New Republic (Nov. 16, 1918) and "Freedom of Speech in Wartime" in the Harvard Law Review (747 [June 1919])—and the book Freedom of Speech (1920), which caused great controversy and also made his reputation, associating him for the rest of his career with free speech issues. In these writings Chafee took aim against contemporary interpretations of the First Amendment. "Nearly every free speech decision," Chafee wrote in his law review article, "appears to have been decided largely by intuition." Chafee sought to replace that intuition with more informed legal reasoning.

In his articles and book, Chafee set forth his views regarding the need to balance the competing interests involved in speech issues. In the following passage from Freedom of Speech, which he described as the key passage of the book, he defined the meaning of freedom of speech:

The true meaning of freedom of speech seems to be this. One of the most important purposes of society and government is the discovery and spread of truth on subjects of general concern. This is possible only through absolutely unlimited discussion, for … once force is thrown into the argument, it becomes a matter of chance whether it is thrown on the false side or the true, and truth loses all its natural advantage in the contest. Nevertheless, there are other purposes of government, such as order, the training of the young, protection against external aggression. Unlimited discussion sometimes interferes with these purposes, which must then be balanced against freedom of speech, but freedom of speech ought to weigh very heavily in the scale. The First Amendment gives binding force to this principle of political wisdom.

Chafee gave an indication of just how "heavily" freedom of speech weighed in the scale by arguing in his law review article that free speech should be tightly protected even in wartime:

Even after war has been declared there is bound to be a confused mixture of good and bad arguments in its support, and a wide difference of opinion as to its objects. Truth can be sifted out from falsehood only if the government is vigorously and constantly cross-examined …. legal proceedings prove that an opponent makes the best cross-examiner. Consequently it is a disastrous mistake to limit criticism to those who favor the war.

Chafee put his case more succinctly when he wrote, "In wartime, speech should be free, unless it is clearly liable to cause direct and dangerous interference with the conduct of the war."

Chafee's views influenced the Supreme Court in significant ways. In particular, Justices

oliver wendell holmes jr., and louis d. brandeis closely studied Chafee's ideas and gradually liberalized their views on free speech. For example, Chafee found fault with Holmes's opinion in schenck v. united states, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919), upholding the conviction of Charles T. Schenck, a secretary of the Socialist party who had distributed leaflets urging men to disobey the draft. Schenck had been convicted under the Espionage Act. In his famous opinion Holmes wrote that Congress may restrict freedom of speech when there is a "clear and present danger" that such speech will bring about "substantive evils that Congress has a right to prevent." Chafee argued that Schenck's actions had not presented a direct danger and that Holmes had not adequately defined what exactly were the "substantive evils" society had to be protected from. Chafee maintained that only sedition that came dangerously close to succeeding might be punished and that a better test of free speech was whether it could gain acceptance in the marketplace of free ideas.

Holmes later used Chafee's ideas in his dissent to abrams v. united states, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173 (1919), in which the Court upheld the conviction of Jacob Abrams, who had been sentenced to twenty years in prison for distributing leaflets opposing U.S. involvement in Russia. Chafee's ideas also influenced other Holmes and Brandeis dissents, including those in gitlow v. new york, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925). The majority in Gitlow determined that the Constitution did not bar the conviction under New York's criminal anarchy statute (Laws 1909, c. 88; Consol. Laws 1909, c. 40) of a socialist who distributed a paper advocating that the government be overthrown, even though no effect whatsoever resulted from circulation of the manifesto. And in another influential case, near v. minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), Chief Justice charles e. hughes used Chafee's ideas in an opinion that voided a Minnesota law (Minn. St. 1927, § 10123–1) calling for the suppression of "malicious, scandalous, and defamatory" publications.

Chafee's views were not popular ones at the time and he nearly lost his job because of them. In 1921, he was brought before the Board of Overseers of Harvard University on a charge of radicalism for his questioning of the sentence handed down in Abrams. Chafee defended himself eloquently in a speech before a special committee in the Boston Harvard Club and he was allowed to remain at Harvard.

Chafee viewed himself as a reformer rather than an activist. Although he often embraced causes considered radical, he also was skeptical of big government and described himself as a "conservative … Rhode Islander steeped in the Roger Williams tradition." Speaking in the early 1920s of his interest in civil liberties, Chafee commented;

I see no reason why I should be out mountain climbing and enjoying life while some other chap who started life with less money and gets a little angrier and a little more extreme should be shut up in a prison for five or ten years….When I am loafing around on my boat, or taking an inordinately large number of strokes on the golf course, I occasionally think of these poor devils who won't be out for five or ten years and want to do a bit to make the weight of society less heavy on them.

Chafee never became an active member of the american civil liberties union or that organization's National Advisory Committee. Nor did he appear often in court. He did harbor ambitions to become a Supreme Court justice but was never nominated for the position.

Chafee wrote on many aspects of the law besides free speech. In 1936 he drafted what he considered to be his foremost professional accomplishment, the Federal Interpleader Act (May 8, 1926, ch. 273, 44 Stat. 416). This was a highly specialized law designed to resolve multiple claims for the same debt against insurance companies, banks, and other businesses. Chafee also became an authority on the mathematical methods for reapportioning among the states the seats in the U.S. House of Representatives. His advocacy of the equal proportions method for allotting House seats eventually led to changes in federal law regarding apportionment after the 1940 census.

During his career Chafee served on a number of committees that made important reforms in U.S. law and society. Beginning in 1923 he was chairman of the Committee of Inquiry on Coal and Civil Liberties. This group produced a report criticizing mine operators, their private police, and their company towns, taking a position that, like Chafee's views on free speech, outraged some influential Harvard law alumni. From 1928 to 1932 Chafee was president of the Massachusetts Council for the Abolition of the Death Penalty. Between 1929 and 1931 he worked for the National Commission on Law Enforcement and Observance, also called the wickersham commission, which looked into police misconduct during the era of prohibition.

Some of Chafee's more important work occurred through his membership on the American Bar Association's Bill of Rights Committee from 1938 to 1947. In this capacity he submitted

advisory briefs in several Supreme Court cases. In a case involving the refusal of Jehovah's Witnesses to have their children salute the flag in school (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 [1943]), Chafee wrote a brief hoping to persuade the Court to reverse an earlier decision upholding a state law requiring a flag salute. In his brief he made an eloquent case for freedom of religion and freedom of expression.

Chafee became an advocate for international human rights later in his career through his work as a representative on the united nations Subcommission on Freedom of Information and the Press in 1947. In 1950, when Chafee's prestige and seniority at Harvard enabled him to teach whatever course he wished, he chose to offer a course called "Fundamental Human Rights." He hoped to have students realize "how dearly these rights were bought and … what they meant to the men who put them forever into our fundamental law."

Chafee received honorary doctor of law degrees from St. John's University, New York, in 1936, Brown University in 1937, and the University of Chicago in 1953. He also received an honorary doctor of civil law degree from Boston University in 1941 and a doctor of letters degree from Colby College in 1944.

He died February 8, 1957, in Cambridge, Massachusetts.

further readings

Re, Edward D. 1981. Freedom's Prophet: Selected Writings of Zechariah Chafee, Jr., University Professor, Harvard Law School. New York: Oceana.

Smith, Donald L. 1986. Zechariah Chafee, Jr.: Defender of Liberty and Law. Cambridge: Harvard Univ. Press.

cross-references

Interpleader.

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