Zechariah Chafee Jr. and the Positive View of Press Freedom

NOTES

• Roscoe Pound to Zechariah Chafee Jr., March 15, 1916, Chafee Papers, Box 2, Folder 22, Harvard Law School Library. I should like to express my thanks to Mrs. James H. Chadbourn, curator of manuscripts and archives, Harvard Law School Library, and to Harley Holden, curator of the Harvard University Archives, for their help and good humor, and to Zechariah Chafee III for permission to do research in his father's papers and for other kindnesses.
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• Chafee, Government and Mass Communications (2 vols.; Chicago: University of Chicago Press, 1947).
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• See Jerold S. Auerbach, “The Patrician as Libertarian: Zechariah Chafee Jr. and Freedom of Speech,” New England Quarterly, 42 (1969), 511–31; Jonathan Prude, “Portrait of a Civil Libertarian: The Faith and Fear of Zechariah Chafee Jr.,” Journal of American History, 60 (1973), 633–56; and Fred D. Ragan, “Justice Oliver Wendell Holmes Jr., Zechariah Chafee Jr., and the Clear and Present Danger Test for Free Speech: The First Year, 1919,” Journal of American History, 58 (1971), 23–45.
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• Statement of Z. Chafee, Jr., about his work on “Freedom of Speech,” Chafee Papers, Box 29, Folder 22, Harvard Law School Library.
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• 268 U.S. 652 (1925).
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• Zechariah Chafee Jr., “Freedom of Speech,” New Republic, Nov. 16, 1918, pp. 66–69.
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• See footnote 12 below.
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• 244 F. 535 (S.D.N.Y.), rev'd, 246 F. 24 (2.d Cir. 1917).
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• For a stimulating discussion of the Masses case and of the current in fluence of Hand's test, see Gerald Gunther, “Learned Hand and the Origins of Modem First Amendment Doctrine: Some Fragments of History,” 27 Stanford Law Review 719 (1975). The article has an appendix containing correspondence between Hand and Chafee and between Hand and Justice Oliver Wendell Holmes. The letters were written between the summer of 1918 and the spring of 1921, a time when the two judges and Chafee were trying to clarify the constitutional meaning of free expression. Gunther, William Nelson Cromwell Professor of Law at Stanford, is preparing a biography of Judge Hand.
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• Chafee, New Republic, op. cit., p. 68.
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• Chafee to Learned Hand, Oct. 25, 1920, Hand Papers, Box 15, Folder 26, Harvard Law School Library. The letter is published in Gunther, op. cit., pp. 766–67, and is quoted here with Professor Gunther's permission.
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• Chafee, Freedom of Speech (New York: Harcourt, Brace and Howe, 1920), p. 156.
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• 249 U.S. 47 (1919).
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• Ibid., p. 52.
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• Chafee, The Blessings of Liberty (Philadelphia and New York: J.B. Lippincott Co., 1956), p. 70; Freedom of Speech, op. cit., pp. 89–93.
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• Chafee, New Republic, op. cit., p. 67.
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• Chafee, Blessings, op. cit., p. 65.
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• Wade C. Stephens, ed., The Spirit of the Classical World (New York: Capricorn Books, 1967), p. 16.
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• For a recent intellectual biography of Pound, see David Wigdor, Roscoe Pound: Philosopher of Law (Westport, Conn.: Greenwood Press, 1974).
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• Quoted in E. Merrick Dodd, “Portrait of Zechariah Chafee Jr.,” Harvard Law School Bulletin, April 1952, p. 9. Of course, lawyers in general are taught that there are two sides to every question.
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• Chafee to Earl C. Borgeson, May 15, 1956, Chafee Papers, Harvard University Archives (Pusey Library).
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• See his Law as a Means to an End, trans. Isaac Husik (Boston: Boston Book Co., 1913).
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• This is the famous three-part series entitled “The Scope and Purpose of Sociological Jurisprudence” published in the June, 1911, December, 1911, and April, 1912, issues of the Review. Pound's discussion of Jhering is in the second article; see 25 Harvard Law Review 140 (1911), pp. 140–47.
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• Chafee, “Freedom of Speech in War Time,” 32 Harvard Law Review 932 (1919), p. 957. The article, somewhat revised, became Chap. 1 of Chafee's 1920 book.
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• Chafee, “Freedom,” Harvard Law Review, op. cit., p. 958.
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• Ibid., pp. 959–60.
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• Ibid., p. 960. The original passage in the New Republic, op. cit., appears at pp. 67–68.
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• Dennis v. U.S., 341 U.S. 494 (1951)
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• See, e.g., his comment in Blessings, op. cit., p. 85.
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• McCarthy's charges were made on July 3, 1952, when he and Sen. William Benton of Connecticut testified before the Senate Elections Committee on McCarthy's resolution calling for an investigation of Benton. McCarthy accused Benton of having “sheltered” seven persons, including Chafee, who allegedly were “dangerous to America,” while Benton was assistant secretary of state, 1946–47. In 1947, upon Benton's recommendation, Chafee had been named to the United Nations Subcommission on Freedom of the Press. In responding to McCarthy's accusation about Chafee, Benton was quoted in the Washington Post as saying, “There is no Communist taint against Dr. Chafee anywhere.” After noting that Chafee had frequently engaged in “lost causes,” he described the professor as “a world champion against the Communists on the subject of press freedom.” See the Washington Post, July 4, 1952, pp. 1, 9.
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• Chafee, “A Contemporary State Trial — the United State versus Jacob Abramset al.,” 33 Harvard Law Review 747 (1920). The article became Chap. 3 of Freedom of Speech.
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• Chafee, “Contemporary,” Harvard Law Review, op. cit., p. 774.
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• For an account of Chafee's “trial,” as well as of events preceding and following it, see Arthur E. Sutherland, The Law at Harvard (Cambridge, Mass.: Harvard University Press, 1967), pp. 250–59.
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• Erwin N. Griswold, “Zechariah Chafee Jr., “70 Harvard Law Review 1337 (1957), p. 1338.
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• Chafee to A. J. Carlson, Dec. 20, 1935, Chafee Papers, Harvard University Archives (Pusey Library).
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• Griswold, op. cit., p. 1338.
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• “Autobiographical Sketch by Z. Chafee, Jr.,” written for Stephen Wise Award Committee, ca. April, 1952, Chafee Papers, Box 15, Folder 26, Harvard Law School Library.
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• Chafee to Carl Stern, Oct. 31, 1941, Chafee Papers, Harvard University Library Archives (Pusey Library).
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• Benjamin Kaplan, “Zechariah Chafee, Jr. — Private-Law Writings,” 70 Harvard Law Review 1345 (1957), p. 1347.
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• Clipping from Harvard Aumni Bulletin, Jan. 10, 1948, Chafee Papers, Harvard University Archives (Pusey Library).
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• Dodd, op. cit., p. 8.
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• See the discussion of “obstacles to the attainment of truth” in Chafee, Blessings, op. cit., pp. 107–10.
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• See, e.g., Chafee, “Liberty and Law,” in Horace M. Kallen, ed., Freedom in the Modern World (New York: Coward-McCann, 1928), esp. p. 113.
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• Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974), p. 258 n. 24 quoting from Chafee, Government and Mass Communications, II (Chicago: University of Chicago Press, 1947), p. 633.
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• For two concise discussions of balancing, see Harvey L. Zuckman and Martin J. Gaynes, Mass Communications Law in a Nutshell (St. Paul: West Publishing Co., 1977), pp. 10–14, and Marc A. Franklin, The First Amendment and the Fourth Estate (Mineola, N. Y.: Foundation Press, 1977), pp. 69–75.
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• Mark DeWolfe Howe, “In Memoriam: Two American Liberals,” The Nation, March 2, 1967, p. 183.
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