The Online Library of Liberty

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• Associate Editors
• Editorial
• Bibliographical Essay: Ellen Frankel Paul, Laissez Faire In Nineteenth-century Britain: Fact Or Myth?
• I: Legal Philosophy
• The Minos: What Is Law?
• Obedience to Law
• Moral and Legal Justification
• Early First Amendment Theory
• The First Amendment & Freedom of Expression
• The First Amendment and Religion
• The First Amendment Vs. the Cpi
• The Economics of Strict Liability
• The Rule of Law In American Politics
• II: Political Analysis
• Society, State, and Right In Proudhon
• Human Rights and Political Change
• Carter's Human Rights Policy
• Locke's Tolerance: Prudence Or Right?
• Political Intolerance
• Hayek: Reason, Relativism, and Liberty
• Hayek On Coercion and Freedom
• “advanced Liberalism” As Managed Capitalism
• Common Good & Public Interest
• Uncrowding the “commons”
• Milgram: Obedience, Authority, & Legitimacy
• Syndicalism & “the Servile State”
• The Parisian League
• Conservatism In Spain
• Soviet Intellectual Orthodoxy
• The Clergy & the American Revolution
• Russian & American Defenses of Servitude
• Croce's Hegemony: How to Win Minds
• III: War and the State
• Just War and Rights
• Just Wars Vs. No Wars
• Walzer & Just War
• Wartime Propaganda Tactics
• Iran, Oil, and the Cold War
• The State and Oil Policy
• San Francisco & the Military Complex
• Protectionist Assaults On Developing Countries
• Government Military Behavior
• IV: Political Economy and Theory
• Three Kinds of “capitalism”
• Adam Smith: Economic Utilitarian
• Roepke: Laissez Faire and Social Order
• Government-induced Boom & Bust
• Austrian Vs. Neoclassical Methodology
• Professor Friedman's Instrumentalism
• Milton Friedman's Critics
• Entrepreneurship and Justice
• Externalities & Government Intervention

Early First Amendment Theory

Alexis J. Anderson

Member of the Firm of Duane, Morris, and Heckscher,

• Philadelphia, Pennsylvania

“The Formative Period of First Amendment Theory, 1870–1915.” The American Journal of Legal History 24(January 1980):56–75.

Many commentators assume that development of First Amendment doctrine began more or less with the free speech cases that arose out of World War I. Alexis Anderson, however, argues that First Amendment doctrine in fact underwent significant development between 1870–1915. Interestingly, this growth of First Amendment doctrine occurred not in the federal courts, but in state courts.

These state court cases arose as a result of the breakdown of American social homogeneity brought about by immigration, industrialization, and urbanization. Typically, the cases involved alleged violations of municipal ordinances that were ostensibly exercises of a municipality's police power. In particular, these ordinances were directed against breaches of the peace and unlawful assemblies and parades. The cases Anderson examines are based on incidents ranging from violations of anti-noise ordinances by drum-beating Salvation Army members to infractions of licensing ordinances by socialist street speakers.

Although the Supreme Court avoided involving itself in these free speech controversies by declining to incorporate the First Amendment into the Fourteenth Amendment, and although the state court decisions were a “mixed bag,” important doctrinal elements for protecting free speech emerged from them. Among those elements is the now familiar “speech/conduct” distinction. In addition, the trend of the cases was toward limiting the use of the police power to the regulation of speech, especially with regard to time, place, and manner, rather than permitting the police power to be used to prohibit speech. “Access to the public forum,” moreover, emerged during this period as an important First Amendment issue in the course of the litigation.

In sum, when the federal judiciary fiinally took up the free speech cases generated by World War I, it could draw upon the considerable experience amassed from 1870 to 1915 by the state courts. More importantly, much of that learning ultimately was incorporated into the free speech doctrine developed at the federal level.