CHAFEE, ZECHARIAH, JR. (1885–1957)

Modern scholarship in the area of free speech is indelibly stamped with the ideas of Zechariah Chafee, Jr., a distinguished professor of law and University Professor at Harvard, and a civil liberties activist.

Chafee, scion of a comfortable business-oriented New England family, left the family's iron business to enter Harvard Law School, returning there in 1916 to teach. Inheriting roscoe pound's third-year equity course, in which Pound dealt with injunctions against libel, Chafee, uncertain as to the meaning of freedom of speech, read all pre-1916 cases on the subject. He concluded that the few existing decisions reached results unsatisfactory to one seeking precedents for free speech protection. This realization, coupled with stringent new wartime espionage and sedition laws, and their often arbitrary enforcement, persuaded him of the importance of developing a modern law of free speech. Starting with articles in the New Republic and the Harvard Law Review, and a 1920 book, Freedom of Speech, Chafee attempted workable delineations between liberty, which he felt must be safeguarded carefully, and the restraints that emergency situations might warrant. Unhappy with the insensitivity of oliver wendell holmes ' initial clear and present danger construct in schenck v. united states (1919), Chafee, with the assistance of Judge learned hand, set out to persuade Holmes that the test for speech should consider not only the individual's interest in freedom but also the social desirability of injecting provocative thought into the marketplace. "Tolerance of adverse opinion is not a matter of generosity, but of political prudence," Chafee argued. Holmes embraced this position in his dissent in abrams v. united states (1919), having been newly convinced that the first amendment established a national policy favoring a search for truth, while balancing social interests and individual interests. Contemporary traditionalists reacted negatively with a move to oust Chafee from Harvard Law School. Such action was thwarted when Harvard President A. Lawrence Lowell rallied to Chafee's defense.

Chafee, as one of the nation's leading civil libertarians in the 1920s became involved with a number of vital issues. He served on commissions to probe owner autocracy and brutality in the mining regions of the East, and he spoke out publicly against excessive use of the labor injunction to curtail legitimate union activities. In 1929 he headed a subcommittee of the Wickersham Commission which looked into police use of the "third degree" and improper trial procedures. He played a prominent role in the American Bar Association's Commission on the bill of rights in the late 1930s, and in the 1940s served on the Commission on Freedom of the Press, afterward performing similar duties for the United Nations.

Chafee maintained a deep commitment to legal education. He personally regarded as his principal professional accomplishment the Federal Interpleader Act of 1936, a statute creating federal court jurisdiction when persons in different states make conflicting claims to the same shares of stock or the same bank accounts. His chief influence can be seen, however, in the work of generations of attorneys and judges, nurtured on his free speech and civil liberties view, who have rewritten First Amendment doctrine along Chafee's lines.

Paul L. Murphy
(1986)

Bibliography

Murphy, Paul L. 1979 World War I and the Origin of Civil Liberties in the United States. New York: Norton.