Henry Schofield

Henry Schofield(1866-1918)

Biographical and Historical Information.

He was born August 7, 1866 in Dudley, Massachusetts. Little is written about his early childhood. He was educated at Nichols Academy in Dudley and at Harvard Co llege and Law School (A.B. in 1887; A.M. and LL.B. in 1890). He moved to Chicago in 1890 and was admitted to the Illinois bar that same year. After practicing far a year, he moved to Washington D.C. were he was assistant to the solicitor general of the United States, Charles Aldrich. He returned to Chicago in 1892 to practice again. In 1902 he gave up his law practice and became a professor of law at Northwestern University, where he lectured on equity and constitutional law. He married Marie Stehlin in that same year and over the course of their marriage they had four children. B. Schofield never wrote a book, but produced a large number of articles and comments on important legal decisions in legal periodicals. These were collected after his deat h in 1921 and published in two volumes under the name Essays on Constitutional Law and Equity and Other Subjects. The most influential of these as far as free speech theory is concerned is his essay on "Freedom of the Press in the United States." He die d August 15, 1918 at the age of fifty-two after an unspecified but prolonged illness.

II. Major Relevant Work. Essays on Constitutional Law and Equity and Other Subjects, "Freedom of the Press in the United States".

1.) Two views on liberty of the press: Hamiltonian: "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for j ustifiable ends, shall be a sufficient defense." (Illinois constitution of 1870) Blackstone (English Common Law): "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon pu blications; and not in freedom from censure for criminal matter when published." In other words, liberty of the press consists in printing without any previous license, subject to the consequences of the law.

2.) Schofield argues that the early Ameri can judges viewed liberty of the press by the second definition.

3.) English common law divided unlawful publications into four categories:

a.) defamatory libels - publications defamatory of personal or professional reputation.

b.) seditious libels - publications defamatory of existing public officers, government, institutions, and laws.

c.) blasphemous libels - publications defamatory of the Christian religion.

d.) obscene and immoral libels - publications defamatory of England's ex isting standard of public morality.

4.) Using these categories, a legal test of lawfulness of a publication was established. The publication was judged based on its "tendency as an opinion-maker to create and diffuse among the people an ill opinion of existing things". This puts the judges applying the test in a position of great importance.

5.) The original declarations of the right of liberty of the press in this country eliminated the English common law test of supposed bad tendency and put more emphasis on the judges to drawing the line between matters of public concern and matters of private concern, and of determining what is truth in a publication on a matter of public concern in cases of defamatory libel. However, some American judges got into the habit of treating the constitutional declarations of liberty of the press as only declaratory of the English common law.

6.) "The declared right of religious liberty is an affirmative right to profess some religion and to worship God. A man who has no religion, rejects all religion, and denies the existence of God cannot have the right or exercise and enjoy it, because he has no practical use for it. Indecent, vulgar, and vile language concerning any religion is not an exercise of th e right of liberty of speech or of the press, but shocks the general sense of fair argument and debate on religion, and is an overt act against peace and good order, punishable as a public nuisance."

7.) Schofield argues that Hamilton's view of libert y of the press does not extend to matters of public concern. If a publication be true in respect of its facts and opinions, it should be law without any consideration for what kind of motive it has, good or bad, or whether the ends are justifiable or not . His view could possibly be used by judges in matters of private concern, but he was not aware of any such case using that limitation.

8.) American judges typically view matters of public concern as "privileged occasions" making it legal to publish falsehood in good faith in the honest belief that it is truth. the judges have altered Hamilton's view by substituting "truth" with "falsehood in the honest belief it is truth". Therefore a so-called judge-made liberty of the press would read, "Liberty of the press is a privilege to publish, with impunity, falsehood on matters of public concern, in the honest belief it is truth, with good motives, for justifiable ends." This definition used by judges is "unauthorized judicial legislation destructive of men's reputations and property" inviting people to use falsehood instead of truth.

9.) Schofield says the exception to this made by the judges is in cases of publications censuring judges. A stranger scandalizing a judge is viewed as a criminal act of contempt of court. The reasoning behind this is the publication may obstruct justice. Schofield argues that matters in the court are of private concern and not of public concern until the case is ended. Therefore, "The practice of dealing with publi cations scandalizing judges under the criminal process of contempt of court ought to be stopped, voluntarily by the judges or under the compulsion of impeachment." Schofield does say that if the practice is desirable, then it should be changed through pu blic amendment and not by judge's interpretations.

10.) He concludes by stating that constitutional liberty of the press in the United States is "nothing more nor less than a fine popular attempt to employ the law and its machinery to realize the grea t saying: 'And ye shall know the truth, and the truth shall make you free'.

lII. Contribution to Free Speech Theory.

Schofield uses this "Freedom of the Press in the United States" as a comprehensive study of the issues surrounding the clause. It is the most complete study of the American roots of the free press clause that I have seen. He shows how we arrived at our current state of free press and tells us what's wrong with the way the clause is interpreted today. He attempts to prove the use of two clauses, one being used by the people and the other being used by the courts. The essay is one that is overcrowded with ideas, but makes each point in a very logical manner. One of Schofield's students, Albert Kocourek commented that this essay "is a pioneer article of great value and the only satisfactory discussion of the constitutional right of free speech as it existed before the World War."

IV. Bibliography.Schofield, Henry. Essays on Constitutional Law and Equity and Other Subjects, "Freed om of the Press in the United States". The Chipman Law Publishing Company: Boston, MA. 1921.

Dictionary of American Biography. "Henry Schofield", Vol. 8. pp. 451-452. New York: Charles Scribner's Sons, 1928-1936.

Who Was Who in America. A compon ent volume of Who's Who in American History. Volume 1. p. 1090. Chicago: A.N. Marquis Co., 1897-1942.