The Left, the Right and the First Amendment: 1918-1928

Abstract

A full account of the work of the Court in these respects, in distinguishing the American experience and defending against its enemies, necessarily would become a book-length treatise. It is possible to begin, however, with a single, critical problem, drastically in need of reappraisal in light of the contextual considerations noted above. That area is freedom of expression. The legal rubric corresponds to a far more complex problem of political theory: the role of information and advocacy in democratic government. In order to see the Court's work in perspective, however, we shall have to examine not only conventional free speech cases, but also a variety of other doctrines through which the Court approached the challenge. In the first two sections of this article I shall examine the two kinds of challenge to liberal democracy. First I shall consider the problem of insurgency - of disorderly politics. Next I shall consider the problem of ideology and interest in political communication. Finally, in the last section, I shall consider one distinctive answer to these problems in the commitment to deliberative politics that emerged in the free speech opinions of Holmes and, especially, Brandeis between 1919 and 1927.