Zechariah Chafee Jr. (1885–1957)

Zechariah Chafee Jr., attorney, professor, legal scholar and well-known champion of civil liberties, was born on December 7, 1885, in Providence, Rhode Island. The son of Zechariah Chafee, Brown University Trustee and president of Builders Iron Foundry, Chafee Jr. attended Brown for his undergraduate degree. Chafee was an excellent student, graduating Phi Beta Kappa in 1907. After graduation, Chafee worked at his father’s business for several years. In 1910, after finding the work unsatisfying, Chafee entered Harvard Law School, receiving his law degree in 1913. On graduation, Chafee moved back to Providence to begin his legal career at Tillinghast and Collins. In 1916, Chafee returned to Harvard Law School to take a position as a professor. He would remain at Harvard until his retirement in July 1956. Less then a year after his retirement, Chafee died in Boston, Massachusetts, on February 8, 1957.

Chafee’s law school interest in civil liberties crystallized into a focus on the First Amendment as a law professor. Chafee deeply opposed the treatment of anti-war protesters during World War I under the Espionage Act of 1917 and the Sedition Act of 1918, which made it a crime to interfere with the operation of the U.S. military, as well as to speak out against the government or the Constitution. Chafee criticized the statutes as being unconstitutional and laid out his philosophy in a 1919 Harvard Law Review article entitled ‘‘Freedom of Speech in Wartime.’’ The article was criticized by a group of Harvard alums that accused Chafee of being a radical and unfit for teaching. They attempted to have Chafee removed from that law school faculty. Although Chafee survived dismissal by a slim one-vote margin, he did not temper his advocacy for the freedom of speech and press. A year later, Chafee published Freedom of Speech, which expanded on the views he expressed in the law review article by criticizing current notions of free speech while emphasizing his belief that certain forms of free speech were absolutely essential to a healthy democracy. Freedom of Speech would go on the influence First Amendment law for a generation. In 1941, on the eve of the United States’ entry into World War II, Chafee republished an updated and revised version of his 1920 book under the new title Free Speech in the United States.

In addition to his personal writings, Chafee was an active member in the civil libertarian community. He defended the freedom of speech and civil liberties every chance he could get. In 1920, Chafee, along with future Supreme Court Justice Felix Frankfurter and other prominent attorneys published To the American People: A Report upon the Illegal Practices of the United States Department of Justice, which criticized the Justice Department’s frequent violations of the Constitution during the Palmer Raids. Chafee also helped to prepare the 1931 Report on the Lawlessness in Law Enforcement for the Wickersham Commission, which looked into police misconduct in the administration of justice. Most importantly, however, Chafee had access to or influence on some of the most prominent jurists of the nation including Supreme Court Justices Louis Brandeis, William Cardozo, Hugo Black, and William O. Douglas. Chafee is widely credited with changing Justice Oliver Wendall Holmes’ conception of free speech after his opinion in Schenck v. United States.

Chafee was not without his critics. In the 1950s during the House Committee on Un-American Activities’ (HUAC) investigations of communist plots against the nation, his opponents often described him as a weak-minded liberal who actively aided communists at home and abroad. Moreover, Chafee’s legal philosophy has been and continues to be criticized as inaccurate and placing too heavy an emphasis on the World War I Espionage and Sedition Act cases as the beginning of serious judicial consideration of free speech in America.

While Chafee was a noted authority in many areas of law including evidence, Copyright Law, and civil procedure, for which he drafted the Federal Interpleader Act of 1936, he is best known for his First Amendment analysis. Indeed, Chafee is frequently regarded as the individual most responsible for the modern constitutional interpretation of the freedom of speech.

Chafee’s First Amendment theory was based on the idea that free speech served an essential role in a democracy. He believed that the Framers’ purpose in passing the First Amendment was to abolish the law of seditious libel, or the defiant criticism of the government, that was commonly used in England. In addition, Chafee believed that the First Amendment not only protected the press from censorship but also allowed the press the ability to have unhindered discussion of public affairs.

Chafee argued that one of the most fundamental responsibilities of a democratic government is to investigate and spread truths that are of universal concern to the population at large. Accordingly, the best means to discover the truth or to learn what problems exist and therefore how to attempt change was to have open and unlimited debate. Chafee thought restrictions on free speech would cause greater damage to a society then any harm that might come as the result of open discussion. Contrary to many of his contemporaries, Chafee believed that open and unlimited discussion was most important during wartime, because it was during war when people are under the most pressure to conform to the majority. During wartime, society had the greatest need to learn both sides of the argument to determine the truth. Under Chafee’s analysis, wartime restrictions on speech served only to produce empty, one-sided talk that was useless in determining the truth.

Chafee placed an equally important role for the protection of free speech on the average citizen. He argued that if the community itself didn’t stand up for open speech, then laws protecting freedom speech would be ineffective. Chafee believed that community customs against free speech had as destructive an effect on free speech as a restriction by statute.

Chafee believed that two forms of expression existed: expressions of individual interest, where people express themselves on matters that are important to them personally, and expressions of social interest, where people express words that convey ideas that are concerned with essential or socially valuable principles. Chafee wrote that since expressions of social interest focus on the search for truths that will help keep order in society and safeguard morality, they were more important then expressions of individual interest. As a consequence, Chafee argued that expressions of social interest must be afforded the greatest protection from censorship and should only be restricted when it is absolutely certain to incite or cause harm to public safety.

Chafee, however, did not believe that the Framers intended there to be an absolute right to freedom of speech under every circumstance. He thought that obscene, profane, indecent, and defamatory speech should not protected. Chafee argued that these forms of speech were more like acts then words. Moreover, he said that since they offered little if any chance for a counter-argument, they could not convey any socially valuable ideas. Under Chafee’s analysis, because of their ability to inflict immediate injury on the listener, incite unlawful acts, or disturb the important societal interests in peace of mind, order, and the training of the young, their expression could be censored, restricted, or punished. For Chafee, however, the scope of what was included in obscene, profane, indecent, and defamatory speech needed to be narrow to protect against the inclusion of unpopular ideas as expressions that cause or incite harm or injury.

Chafee also believed that the freedom of speech, or more specifically, the freedom of debate extended to members of Congress. Indeed, he believed that the right of members to be free to debate was so important to the Framers that they included it in the Constitution under Article 1, Section 6, rather then in the Bill of Rights. He held that there was an intimate connection between the freedom to debate in Congress and the freedom of speech of the private citizen, because the basis for limiting freedom of debate in government was similar to that used to limit freedom of speech in society at large. For Chafee, just as the freedom of speech in society helped in the attainment of truth, freedom of debate in Congress helped to bring about the most efficient management of the government affairs.

Similar to his theories on freedom of speech, Chafee also believed that freedom of debate was not unlimited. He believed that the freedom to debate extended only to what members did as part of the business of Congress. All debate outside of these parameters was open to punishment. The Constitution, however, made clear that only fellow members of Congress had the ability to punish abuses of the freedom of debate. Accordingly, Chafee believed that members had a positive duty to police themselves and ensure that the freedom of debate did not result in slanderous speech against private citizens or interests.

Chafee’s arguments for the right of all people to speak their mind without fear of punishment continues to play an important role in American society.

MARCEL GREEN

References and Further Reading

• Chafee, Zechariah Jr., Freedom of Speech in Wartime, Harvard Law Review 32, (1919): 932
• ———. Free Speech in the United States. Cambridge, MA: Harvard University Press, 1948
• Smith, Donald L. Zechariah Chafee, Jr., Defender of Liberty and Law. Cambridge: Harvard University Press, 1984

Cases and Statutes Cited

• Schenck v. United States, 249 U.S. 47 (1919)