Category: History of Law

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The dark history of the whiteness of milk


Milk is having a moment lately. A dark moment. Or, more to the point, a white moment. As the recent NY Times article Why White Supremacists Are Chugging Milk (and Why Geneticists Are Alarmed) explained, white nationalists and members of the so-called alt-right have been using milk as a symbol of white supremacy since the early days of the Trump presidency. It started with an event that has since been dubbed “the milk party,” in which a large group of white men gathered in front of a livestreaming camera on the streets of New York City carrying cartons of milk and voicing everything from off-color taunts to explicitly racist, sexist, anti-Semitic, and homophobic rants. The atmosphere was raucous. After taking a swig of milk from his carton, one barechested man approached the camera and sneered. “An ice cold glass of pure racism,” he growled into the lens.

After that night, milk quickly went viral, joining the ranks of Pepe the Frog and the “okay” emoji as symbols of twenty-first century, post-Obama white supremacy. Pro-Trump supporters carried cartons of it to rallies. The hashtag #MilkTwitter was used in hundreds of tweets explicitly connecting milk with racist memes and sentiments. Richard Spencer added a milk-bottle emoji to his Twitter profile with the phrase “I’m very tolerant… lactose tolerant!”

    

This all may sound like the sort of fringe phenomenon that is best ignored, dismissed, or shrugged off as being nothing more than the provocative antics of far-right trolls. But not only is racist humor cloaked in irony worth taking seriously, this is not milk’s first rodeo with hate and ignorance. Far from it. In fact, the story of milk’s relationship with racism, sexism, colonialism, and other forms of oppression is notable in large part because of just how not-fringe it is. It’s a story about the rhetoric of modernity, progress, and scientific advancement, and features an esteemed cast of characters including university scientists, USDA publicists, the US National Dairy Council, the FDA, and the U.S. Code. And it’s a story with huge implications for the future of US food policy in the decades to come.

Over the next several weeks I’ll be telling the tale of the sinister side of milk. Today I’m taking you back in time to the late 19th century, to the years surrounding the passage of the first US immigration law that excluded an entire ethnic group, the Chinese Exclusion Act.

A “wretched, impotent, and effeminate race”: the gendered and racial politics of food

Exclusion of Chinese. The Cooly Trade. Those are the names of Chapters 7 and 8 of US Code Title 8: Aliens and Nationality. Yes, today’s US Code. The laws themselves have been repealed, but the ghost of them remains alive and well in those chapter titles—and, some would argue, in current-day politics around race, immigration, and food policy.

The United States had a policy of relatively free and open immigration during the 18th and early 19th centuries; the policy was rarely questioned until the late 1800s. The California Gold Rush in the mid-1800s brought with it a surge of immigration from China, which continued as Chinese immigrants sought jobs in agriculture, mining, railroad construction, restaurant, laundry, and other industries.

While Chinese immigrants represented the largest group of nonwhite immigrants who came to the United States between 1870 and 1880, they comprised only 4.3% of all immigrants who entered the country during that time. That said, they were viewed by many with vitriol, accused of stealing jobs from white workers. They were also accused of being dirty in mind and in body, accused of spreading disease and “moral and racial pollution” to American cities. Chinese men were also seen as undermining acceptable gender roles by engaging in jobs like cleaning and cooking, which were seen as “women’s work.”

These widespread anti-Chinese sentiments were bolstered by the opinions of respected experts who perpetuated racist ideologies under the guise of science. Much of that science concerned a perceived link between physical and mental strength (or weakness) and diet. Eating animal-based foods like meat and dairy was associated with intellectual superiority and virile masculinity exemplified by the white western man, while plant-eating was associated with Asian cultures and was thought to represent emasculation and to confer weakness of both mind and body. As E. Melanie DuPuis noted in Angels and Vegetables: A Brief History of Food Advice in America, “the racial rhetoric of the day . . . portrayed Asians as effeminate and enfeebled and the Chinese ‘leaf diet’ as a cause of degeneracy.”

In 1884 American neurologist named James Leonard Corning published Brain exhaustion, with some preliminary considerations on cerebral dynamics, in which he sought to explore the numerous ‘demands upon the thinking apparatus’ as well as possible remedies for a range of ‘mental phenomena.’ Corning spoke in one chapter of ‘defective brain nutrition’ and the role between various types of food on the brain’s development, health, and disease. In one passage, Corning linked the perceived intellectual inferiority of Chinese people to the (supposed) plant-based, milk-and-meat-deficient nature of their diets:

Where mental courage, tenacity of purpose, and concentrated energy are required the introduction of large quantities of fibrin and albumen into the system produces the most marvelous results. Thus, flesh-eating nations have ever been more aggressive than those peoples whose diet is largely or exclusively vegetable. The effeminate rice-eaters of India and China have again and again yielded to the superior moral courage of an infinitely smaller number of meat-eating Englishmen’ (emphasis added).

Not only were Chinese and other Asian people intellectually weak because they ate plants, argued Corning, but white people were intellectually superior because they ate animals (and drank milk), noting that the “most wonderful instance of the intellectual vigor of flesh-eating man is the unbroken triumph of the Anglo-Saxon race.” Corning’s medical opinions were shared by many of his peers: a year before he published Brain exhaustion, a respected Australian doctor named Stephen Mannington Caffyn published How, When, and What to Eat: A Guide to Colonial Diet, in which he cautioned that “[w]e might expect to find rice-eaters everywhere a wretched, impotent, and effeminate race, and such is the case.”

That medical experts like Corning and Caffyn perpetuated these racist and sexist tropes and grounded them in “science” gave significant legitimacy to these sentiments, leading to what Carol Adams described in her landmark work The Sexual Politics of Meat as a “racialized politics of meat” that worked to split the “world into intellectually superior meat eaters and inferior plant eaters.” The same could be said of milk as well.

     

The Chinese Exclusion Act was passed in 1882 with widespread support from lawmakers, many of whom called Chinese immigrants “rats,” “beasts,” and “swine” while the bill was being debated. Former Union general and California senator John F. Miller introduced the bill referring to the Chinese as a “degraded and inferior race.” The sentiment was widespread and long-lasting, and was sometimes linked back to the role of food: a 1902 report published by the American Federation of Labor (AFL) supporting the Chinese Exclusion Act framed the union’s views on Chinese immigration in terms of diet, titling it “Meat vs. Rice: American Manhood vs. Asiatic Coolieism, Which will Survive?

Even Justice John Marshall Harlan, whose lone dissent in the infamous 1896 case Plessy v. Ferguson upholding the constitutionality of the “separate but equal” doctrine is widely seen as an example of courage and strength of character, viewed Chinese people worthy of distain and exclusion. “The white race deems itself to be the dominant race in this country,” he wrote in his Plessy dissent. “And so it is in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time if it remains true to its great heritage and holds fast to the principles of constitutional liberty.” He went on to note without hesitation or critique that “[t]here is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.” While Harlan used this example as a way to point out the absurdity of the “separate but equal” doctrine—explaining that by “the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana [cannot]”—it underscores the extent to which Chinese immigrants were vilified at every level of power and in every corner of American life.

The Chinese Exclusion Act was amended and expanded in 1924 to prevent citizens of other Asian nations from immigrating to the United States, and remained in effect until it was repealed in 1943. During and immediately after World War I, US animus toward Asian people took on a renewed significance. As DuPuis explained, as the “need for strong and aggressive bodies to fulfill national imperial ambitions” led to the “politics of ingestion [becoming] caught up in questions about the physical strength of the armed forces.” In the process, bodies “were compared across races and nations, and so it was that the Asian body came to represent nutritional deficiency in American gastropolitical discourse at this time.” Specifically, continued DuPuis,

[t]he Asian body became the sign of colonial subjection and effeminacy, while the tall, meat-eating and milk-drinking masculine American working-class body signified the superiority of the white diet. This characterization served as justification for white imperial projects in the post–World War I era. Colonial non-meat eaters were viewed as conquered peoples, defeated by diet. In their shared disdain for nonwhite races, the working and middle classes found a common identity as members of a powerful nation.

Next time: dairy milk’s role in crafting modern tropes of idealized white masculinity.

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Barnette at 75 — FIU Law Review Hosts Major Conference

Professor Howard Wasserman

Earlier this month the Florida International University Law Review hosted a major conference to celebrate the 75th anniversary of West Virginia State Board of Education v. Barnette (1943). Of the many conferences I have attended, this was unquestionably one of the very best.  

Organized mainly by Professor Howard Wassermanthe event made for a wonderful mix of  different ways (historical, jurisprudential and biographical) by which to consider and reconsider the landmark flag-salute case.

If you think you know everthing there is to know about Barnette, think again and check out the video of the conference (see time markers below).  Print issue forthcoming. 

__________________________

Barnette at 75: The Past, Present, and Future of the “Fixed Star in Our Constitutional Constellation”

Friday, October 5, 2018

0:20:26

Welcome and Introduction, Prof. Howard Wasserman, Faculty Symposium Organizer

0:25:00

Welcome remarks, Dean Antony Page, Florida International University College of Law

FIU Law Review Members 2018-2019

First Panel: Barnette in Historical Context

0:32:13

Ronald K. L. Collins, Harold S. Shefelman Scholar, University of Washington School of Law

  • Thoughts on Hayden C. Covington and the Paucity of Litigation Scholarship

0:57:07

John Inazu, Sally D. Danforth Distinguished Professor of Law & Religion, Washington University School of Law

  • Barnette and the Four Freedoms

1:13:20

Genevieve Lakier, Professor of Law, University of Chicago School of Law

  • Barnette, Compelled Speech, and the Regulatory State

1:32:00

Brad Snyder, Professor of Law, Georgetown University Law Center

  • Frankfurter and the Flag Salute Cases

Second Panel: Reading Barnette

2:39:15

Aaron Saiger, Professor of Law, Fordham University School of Law

  • The Pedagogy of Barnette

3:00:49

Steven Smith, Warren Distinguished Professor of Law, University of San Diego School of Law

  • “Fixed Star” or “Twin Star”? The Ambiguity of Barnette

3:20:58

Paul Horwitz, Gordon Rosen Professor of Law, University of Alabama School of Law

  • Barnette: A Close Reading (for Vince Blasi)

Keynote Address

4:31:55

John Q. Barrett, Professor of Law, St. John’s University School of Law

  • Justice Jackson & Jehova’s Witnesses: Barnette in its Context, and in Jackson’s Life and Work

Third Panel

5:30:05

Erica Goldberg, Professor of Law, University of Dayton School of Law

  • “Good Orthodoxy” and the Legacy of Barnette

5:52:12

Abner S. Greene, Leonard F. Manning Professor of Law, Fordham University School of Law

  • Barnette andMasterpiece Cakeshop: Some Unanswered Questions

6:12:19

Leslie Kendrick, Vice Dean and David H. Ibbeken ’71 Research Professor of Law, University of Virginia School of Law

  • A Fixed Star in New Skies: The Evolution of Barnette
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FAN 200 (First Amendment News) Special 200th Issue: 15 Women & Their Views on Free Speech

To commemorate the 200th issue of First Amendment News, I invited women from various professions (lawyers, law professors, and a journalism professor) to draft original essays on any aspect of free speech law. Why only women? Fair question. My answer has to do with the fact, as I perceive it, that by-and-large those who receive the most attention in the First Amendment arena are men. I leave it to others to explain if and why that might be so — some of the contributors to this symposium do just that. However that may be, of this I can say with a good measure of certainty: the essays that follow are diverse, thoughtful, somtimes provocative, original, and often mind-opening.  I extend my thanks to the 15 contributors for their sympsoium essays and to Kellye Testy for kindly agreeing to write the Foreword.  

→ Related: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018 (Aug. 7, 2018)      

→ With this issue First Amendment News ends its long and rewarding affiliation with Concurring Opinions. I want to thank my colleagues here for their valuable and generous support. I especially want to thank Professor Dan Solove who years ago dared to invite me to be a part of his team. Happily, Dan and his colleagues have agreed to allow me to continue to contribute to Concurring Opinions.

Starting sometime in October, FAN’s new host will be the Foundation for Individual Rights in Education (FIRE). Among other things, you can expect more news along with a variety of digital improvements. From time to time, FAN will also host or co-host live and online symposia and may even conduct a study or two. One thing will, however, remain constant: my commitment to being a fair broker of content. So stay tuned — some of the best is yet to come. — RKLC    

_______Symposium_______

Foreword

Kellye Testy, “Prior Restraint: Women’s Voices and the First Amendment

15 Contributors  

Jane Bambauer, “Diagnosing Donald Trump: Professional Speech in Disorder

Mary Anne Franks, “The Free Speech Fraternity

Sarah C. Haan, “Facebook and the Identity Business

Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech

Marjorie Heins, “On ‘Absolutism’ and ‘Frontierism’”

Margot Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place

Lyrissa Lidsky, “Libel, Lies, and Conspiracy Theories

Jasmine McNealy, “Newsworthiness, the First Amendment, and Platform Transparency

Helen Norton, “Taking Listeners’ First Amendment Interests Seriously

Tamara Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra

Ruthann Robson, “The Cyber Company Town

Kelli Sager& Selina MacLaren, First Amendment Rights of Access

Sonja West, “President Trump and the Press Clause: A Cautionary Tale

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Nation’s only History Book Festival returns to Lewes, DE — Sept. 28th & 29th

I had the great privilege of presenting at the 2017 History Book Festival. It was an absolute delight. The organizers and hosts were extraordinarily hospitable, the events were well attended and lively, the audience was bubbling over with questions. Overall, it was a terrific and memorable experience. Great start! And, to top it off, the town of Lewes is lovely.

Geoffrey StoneSex & the Constitution: Sex, Religion, & Law from America’s Origins to the Twenty-First Century (2017)

___________________________________________

The nation’s only History Book Festival returns to Lewes, DE., for its second year.

History Book Festival Speakers

Friday Sept. 28th & Saturday Sept. 29th

KEYNOTE (Friday Evening Sept. 28th / tickets here) 

— Blanche Wiesen Cook

  •  Eleanor Roosevet: The War Years & After, 1939-1962 (vol. 3)

 Interviewed by Paul Sparrow, Director of the FDR Library

 Musical accompaniment by David Cieri, composer for the Ken Burns documentary on FDR

_________________Saturday Sept. 29th_________________

 Lighting the Fires of Freedom: African American Women in the Civil Rights Movement by Janet Dewart Bell 

 Young Benjamin Franklin: The Birth of Ingenuity by Nick Bunker

The Comeback: Greg LeMond, the True King of American Cycling, and a Legendary Tour de France by Daniel de Visé

Valley Forge by Bob Drury and Tom Clavin,

Dinner in Camelot: The Night America’s Greatest Scientists, Writers, and Scholars Partied at the Kennedy White House by Joseph A. Esposito

Tinderbox: The Untold Story of the Up Stairs Lounge Fire and the Rise of Gay Liberation by Robert W. Fieseler,

The Royal Art of Poison: Filthy Palaces, Fatal Cosmetic, Deadly Medicine, and Murder Most Foul by Eleanor Herman

— The Lost Locket of Lewes (children’s historical fiction) by Ilona E. Holland, Ed.D

Damnation Island: Poor, Sick, Mad, and Criminal in 19th-Century New York by Stacy Horn

Kosher USA: How Coke Became Kosher and Other Tales of Modern Food by Roger Horowitz

The Hunger (historical fiction), by Alma Katsu

The Kennedy Debutante (historical fiction) by Kerri Maher 

The Widows of Malabar Hill (historical fiction) by Sujata Massey 

Five for Freedom: The African American Soldiers in John Brown’s Army by Eugene L. Meyer

The Rise of Yeast: How the Sugar Fungus Shaped Civilization by Nicholas P. Money

Inspector Oldfield and the Black Hand Society: America’s Original Gangsters and the U.S. Postal Detective Service Who Brought Them to Justice by William Oldfield and Victoria Bruce

Delaware’s John Dickinson: The Constant Watchman of Liberty 

— Chesapeake Requiem: A Year with the Watermen of Vanishing Tangier Island by Earl Swift

Miles and Me by Quincy Troupe

Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock by Amy Werbel 

Not Our Kind (historical fiction) by Kitty Zeldis

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FAN 199.1 (First Amendment News) Two New Podcasts — Dissent in the Era of the Gutenberg Press & Free Speech in the Robotic Era

Two new podcasts — the subjects which are separated in time but not in concept — address the relationship between the modes of communication and censorship.  The first is a Clear & Present Danger podcast by Jacob Mchangama entitled The Great Disruption – Part II. The second is a So to Speak podcast narrated by Nico Perrino entitled Robotica: Speech Rights & Artificial Intelligence and consists of an interview with Ronald Collins and David Skover.

In episode 11 we continue to survey the wreckage after hurricane Luther was unleashed on Europe with the Reformation. When the Reformation mutated and spread across the continent a burning question arose: Can people of different faiths live together in the same state? Should social peace be based on tolerance or intolerance? We look into questions such as

  • How did other Protestant reformers like Calvin and Zwingli react to religious dissent?
  • In what manner did English and continental censorship laws differ?
  • How did the Catholic Church react to the Reformation?
  • Which states were the first to formalize religious tolerance?
  • How did the scientific and philosophical ideas of Galileo and Giordano Bruno conflict with the religious monopoly on truth and what were the repercussions?

___________________So to Speak podcast_______________________

David Skover (left), Ronald Collins (center) & Nico Perrino (right)

On this episode of So to Speak: The Free Speech Podcast, we are joined by First Amendment scholars Ronald Collins and David Skover. They are the authors of the new book, Robotica: Speech Rights & Artificial Intelligence.

From the printing press to the internet, advances in communications technology often upset the established order and spawn demands for censorship. There is little reason to suspect advances in artificial intelligence will be treated differently. As free speech advocates, how should we respond to these demands?

To answer that question, Collins and Skover argue that we need to take a step back and ask some more fundamental questions about the values we seek to advance in protecting speech in the first place.

___________________Make No Law podcast_______________________

Everyone loves a good redemption story. Maybe that’s because it helps us believe it’s never too late to change. But how does the same Justice who decided Schenck v. United States, a low point for First Amendment jurisprudence, become the ultimate source of famous First Amendment concepts and rhetoric?

In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White explores Justice Oliver Wendell Holmes’s transformation into the First Amendment hero we know him as today. To do this, Ken discusses the Sedition Act of 1918, Holmes’s dissent in United States v. Abrams, and the discourse with his friends and colleagues that ultimately swayed his opinion on free speech. He also talks to Professor Thomas Healy, First Amendment and constitutional law professor at Seton Hall and author of The Great Dissent: How Oliver Wendell Holmes Changed His Mind And Changed The History Of Free Speech In America.

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FAN 199 (First Amendment News) SPECIAL ISSUE: 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018

Olive H. Rabe (credit: Boulder Daily Camera)

It was a Friday, April 12, 1929, when Olive Rabe, counsel for the appellant, entered the old Senate chamber with its grayish walls. She walked down the red carpet toward the bench, took her assigned seat at a mahogany table, and waited for the justices to enter the small chamber from the robing room across the Capitol corridor.

Only a few other women had done what she was about to do, argue a case before the Supreme Court — the first woman lawyer being Belva Ann Lockwood. (A couple of pro se women preceded her.)

There in that solemn chamber, with Chief Justice William Howard Taft in the center flanked by Oliver Wendell Holmes Jr. and Louis Brandeis and their brethren, Rabe (age 40) would make the case for another woman, Rosika Schwimmer (age 51). She would be the first woman to argue a “free speech” case in the high court. For any number of reasons, it was a rare moment in Supreme Court history. — Ronald Collins & David Hudson (May 26, 2008)

* * * *

Eleanor Holmes Norton

When it comes to the First Amendment, relatively little is known about the roles women played in the development of that body of law. While many may know of Justice Holmes’s oft-quoted free-speech dissent in U.S. v. Schwimmer (1929), how many are aware that Olive H. Rabe, a labor lawyer, represented the respondent in that case?  Schwimmer, however, was a free speech statutory interpretation case but not, strictly speaking, a First Amendment case. It would take another 24 years before a woman  (Florence Perlow Shientag) would argue a First Amendment free expression case —  Superior Films v. Dep’t of Education of Ohio (1953) (for respondent). Thereafter, it took  15 years before another woman would do likewise. That woman was Eleanor Holmes Norton, who successfully argued on behalf of the petitioner in Carroll v. President and Commissioners of Princess Ann (1968). Four years later Sophia H. Hall successfully argued on behalf of the appellant in Grayned v. City of Rockford (1972) (oral argument transcript here). The world was starting to change, but not fast or often enough.  

Barbara Underwood (credit: NY Daily News)

The list below consists of 38 women who  argued 43 First Amendment freedom of expression (speech, press and assembly) cases before the Supreme Court between 1880 and 2018.  Since the data bases I consulted started in 1880, my list begins there and continues through the 2018 line of Supreme Court cases.

The woman who argued the most such cases was Barbara D. Underwood (3 cases) followed by Patricia Millett (2 cases), Ann E. Beeson (2 cases), and Elena Kagan (2 cases). Pamela Karlan was the last woamn to argue a First Amendment free expression case — Lozman v. City of Riviera Beach, Florida  (2018).

To the best of my knowledge, the list below is complete though given the difficulty of identifying the lawyers and cases, it might be that I overlooked someone — if so, please inform me and I’ll update the list.

Related

_____________The 38 Women________________ Read More

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FAN 175.1 (First Amendment News) More from FIRE — New Podcast Series Charts History of Free Speech

“The podcast provides an engaging and inspiring history of free speech that is accessible to anyone interested in a topic that is fundamental to every human being and society. If you want to understand what’s at stake and know about the battles that our predecessors were engaged in the fight for free speech there can be no better place to start than with Jacob Mchangama’s podcast.”  Flemming Rose 

The folks at FIRE (Foundation for Individual Rights in Education) are on fire when it comes to almost anything having to do with free speech. They

And now, they have just released the first installment (an introduction) to an incredible podcast series on the history of free speech. It is titled: 

The series is spearheaded by Jacob Mchangama, a Danish lawyer, human-rights expert, and social commentator and the founder and director of Justitia, a Copenhagen think tank focusing on human rights and the rule of law. For six years he served as chief legal counsel at CEPOS. This year Mchangama is a Visiting Fellow at FIRE.

Why have kings, emperors, and governments killed and imprisoned people to shut them up? And why have countless people risked death and imprisonment to express their beliefs? Jacob Mchangama guides you through the history of free speech from the trial of Socrates to the Great Firewall.

Jacob Mchangama

Description

A prologue introduces the background of the podcast series and is being released today. The first official episode will be aired on February 1st. Subsequent episodes will be released on a bi-weekly basis.

Each episode focuses on a particular historical era or theme, providing listeners with a deeper understanding of how, where and why free speech has developed over time.

The first episode takes listeners back to ancient Athens focusing on the trial of Socrates and the crucial role that equal and uninhibited speech played in the world’s first democracy.

“We mustn’t allow free speech to fade into a feel-good slogan. It is an unintuitive principle with a rationale that many don’t appreciate and a history that many don’t know. Mchangama’s lucid history of free speech fills that gap and deepens our understanding of this precious concept” Steven Pinker 

The following episodes will visit places and eras such as Ancient Rome, Central Asia’s Golden Age, the Abbasid Caliphate, The Renaissance, Enlightenment and beyond.

The podcast will also feature “Expert Opinions,” interviews with leading historians and experts.

You can follow the podcast on the website (www.freespeechhistory.com), Facebook (www.facebook.com/freespeechhistory) and on Twitter (@CAPD_freespeech).

Disclosure: I work on FIRE’s online First Amendment Library and am also working with them on a forthcoming e-coursebook on free speech (stay tuned!).

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FAN 174 (First Amendment News) Special Issue on Legal History — New article “reorients our understanding of the history of speech and press freedoms”

According to the most famous words of the First Amendment, “Congress shall make no law . . . abridging the freedom of speech.” But what did the founders understand those words to mean? A remarkable answer comes from Jud Campbell, a University of Richmond law professor, who has just produced what might well be the most illuminating work on the original understanding of free speech in a generation. In brief, Campbell argues that the founders meant to protect a lot less speech than most of us think.

Cass Sunstein, The Originalism Blog

Leonard W. Levy (1923-2006)

History forever haunts us. Even if it did not, there is always that temptation to look into the rear-view mirror to catch a fleeting glimpse of the world of the dead. Even some of the great who wrote about the dead are themselves now dead. Remember this constitutional historian?

Still, the living continue to dig up the dead and tell their stories . . . as best they can frame them. For example,

Of course, there is more, much more. That said, there’s a new player in the First-Amendment-history town; he is Professor Jud Campbell and he has an impressive new article in the Yale Law Journal. It is titled

Natural Rights and the First Amendment

ABSTRACT. The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech.

Professor Jud Campbell

This Article argues that Founding Era elites shared certain understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference.

This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

Nico Perrino over at FIRE interviews Professor Campbell in a So to Speak podcast

Newly Posted Historial Documents Read More

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Bushrod Washington and West Ford

One controversy that I will explore in my Bushrod Washington books concerns the parentage of West Ford, one of the Justice’s slaves. Some scholars contend that Ford was fathered by a Washington, in part because he was freed by Bushrod and given a large parcel of land at Mount Vernon, which was highly unusual.

 

Without commenting further, take a look at a portrait of the Justice and an engraving of Ford done when he was a young man.

 

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Law as Beauty

Law book illustrations serve many practical purposes. Yet they also can be items of simple beauty. Our gallery tour closes with books in which the bridge between abstraction and the real—the two polarities at the heart of legal experience—opens onto a view of the aesthetic.

In this magic space of the imagination, law gives birth to art that stands on its own.

These books gently overflow the boundaries of law as a field of knowledge and the law book as a category of publishing. They thereby pay tribute to law and to the publishing of books as endeavors that implicate our deepest humanity. Read More