Zechariah Chafee

Michael J. Fernandes

Zechariah Chafee Jr.

Dec. 7, 1885 -- Feb. 8, 1957

Attorney, Legal Historian, Legal Expert, Professor

Great is the value of united opinion in war, but it cannot be effectively obtained by persecution. (p.6)

Government was servant, and therefore subjected to blame from its master, the people.(p. 22)

James Madison, Thomas Jefferson, and other had established a national tradition of open discussion; weaker twentieth-century descendants insulted their memory by choking off discussion. (367)

Biographical Information:

1885 Born in Providence, Rhode Island

1907 Graduated from Brown University

1908 Received Law Degree from Harvard

1916 Became Professor at Harvard Law School until 1956

1920 Freedom of Speech (Political Dissenters of War World One)

1936 Drafted the Federal Interpleader Act of 1936

1941 Free Speech in the United States (rewritten and expanded version)

1947 Government and Mass Communications

1950 Lobbied unsuccessfully against the McCarran Internal Security Act

1956 Blessings of Liberty

Authority of Equity, Negotiable Instruments, and Unfair Business Competition.

Advocate of Civil Liberties

One of founding fathers of two-level system of free speech: Worthwhile vs. Worthless Expression.

He became interested in 1st Amendment during World War One. (Accident, preparing notes for a course on equity, came across a nineteenth-century case involving the suppression of an anticipated libel. During the War, leftist and pacifist opponents of the American effort, indicted under the Espionage Act of 1917 (up to 20 years in jail and a fine of up to $10,000) and the judges upheld convictions. Chafee believed this violated the First Amendment.

Chafee believed that a Good Law should be: 1) Clear 2) Rational 3) Predicable (believed current law was fuzzy and repressive...failing his test of Good Law)

As the U.S. came closer to The Second World War, Chafee published an updated and expanded version of Freedom Of Speech. Free Speech in the United States Became a leading text of U.S. Libertarian thought. The text was originally aimed at attorneys but the current issue aimed at everyone History of Free Speech in America and a theory of First Amendment protections. Emphasis on political expression and the problem of seditious libel.

Social Value of Tolerance:

1) The Founders had banished seditious libel from American Law.

2) Pre-World War free-speech cases were few in number and contained nothing worth knowing

3) Justice Holmes fashioned the valuable Clear and Present Danger (369)

2 Types of Expression

a) Individual Interest: Persons speaking on matters that are important to them if life is to be worth living.

b) Social interest: Speech concerned with the attainment of truth so that citizens are well informed on public issues.

(Social interests are more important than individual ones.) There are 2 important social interests:

a) Public Safety

b) Search for Truth

Every reasonable attempt should be made to maintain both interest unimpaired, and the great interest in free speech should be sacrificed only when the interest in public safety is really imperiled, and not as most men believe, when it is barely conceivab le that it may be slightly affected. In war time, therefore, speech should be unrestricted by the censorship or by punishment, unless it is clearly liable to cause direct and dangerous interference with conduct of the war.

1) Clear and Present Danger Test

2) Schenck case still holds

First Amendment does not cover: Worthless Language.

1) profane, indecent or defamatory language.

a) Slight social value as a step toward truth b) Social interest of order, morality, the training of the young and the peace of mind of those who hear and see is greater.

Chapter 1:

Refutes Blackstonian theory.

The government cannot interfere by a censorship or injunction before the words are spoken or printed, but can punish them as much as it pleases after publication, no matter how harmless or essential to the public welfare the discussion may be. (p.9) The Free Speech clause is to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any per son in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them...The evils to be prevented were not the censorship of the press merely, but any action of th e government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens. (p. 11)...speech and the press be completely im mune from legal censure and punishment for the publication, so long as it is not harmful in its character, when tested by such law standards. (p.13)

Ex Post Facto Censorship of the press

The Freedom of Press: Advancement of

1) Truth 2) Science 3) Morality 4) Arts

5) Promotion of union between citizens and representatives

6) Hold officials to more honorable work. (p.17)

Jury trial:

1) Little value in times of war, because the tyranny of the majority reigns supreme.... minorities may be terrorized and silenced when they are most needed by the community and most useful to it, and when they stand most in need of the protection of t he law against a hostile, arrogant majority. (p.28)

2) The juries will usually acquit after the excitement is over.

3) Juries differ in opinion in different parts of the country on same publication or similar publication.

In war time, speech should be unrestricted by the censorship or by punishment, unless it is clearly liable to cause direct and dangerous interference with the conduct of the war....when words give rise to unlawful acts. (p.35)

Advancement of Speech:

* Ernest Angell of the ACLU eulogized Chafee in 1957 as the Constitutional historian to whom every draftsman of a brief or essay involving civil liberties turned for background authority. (371)

* One Federal Judge, after handing down a pro-free speech ruling in 1938, went so far as to refer to himself as Chafee's Judicial Disciple. (374)

* The rights-consciousness that has so powerfully infused American legal culture in the second half of the twentieth century traces an important line of its intellectual genealogy back to Chafee's desk at Harvard. (374)

* One of the first people to believe freedom of the press and of the individual's opinion in time of war should be allowed except if it causes immediate danger or incites unlawful acts. His major influence was upon the attorneys, judges and ordinary indiv iduals who read his work. He also advocated the clear and present danger test which help implement it among the people. True libertarian of free speech and a dedicated First Amendment hopeful.


Chafee, Zechariah Jr. Free Speech in the United States. Harvard University Press, 1964.

Tedford, Thomas L. Freedom of Speech in the United States. McGraw Hill, Inc. Northwestern University,1993.

Wertheimer, John. Chafee and Free-Speech History. Reviews in American History. Volume 22 No. 2 June 1994. The Johns Hopkins University Press. Maryland.

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