Zechariah Chafee Jr.

CHAFEE, ZECHARIAH, JR.

As a leading U.S. legal scholar and educator,
Zechariah Chafee Jr. did more than anyone else
in the early twentieth century to shape the
debate surrounding FREEDOM OF SPEECH and
the Constitution’s FIRST AMENDMENT. In his
most influential book, Freedom of Speech (1920),
Chafee argued for the importance of protecting
free speech even in wartime. His ideas later
guided the Supreme Court in liberalizing its
approach to free speech.
Chafee was born on December 7, 1885, in
Providence, Rhode Island, to a wealthy family.
He attended Brown University, graduating with
a bachelor’s degree in 1907. He helped manage
his family’s iron foundry for three years and
then left to attend Harvard Law School in 1910.
He remained on the family firm’s board of directors
for the rest of his life. He married Bess
Frank Searle in 1912 and they had four children.
While at Harvard he was influenced by the theories
of sociological JURISPRUDENCE presented
by ROSCOE POUND and others. At Harvard, he
also met Harold J. Laski, a political scientist and
later a leader of England’s Labour party, who
became a lifelong friend. Chafee graduated from
law school with a bachelor of laws degree in
1913 and practiced law for three years in Providence.
In 1916 he began teaching at Harvard
Law School as an assistant professor of law. He
accepted a full professorship three years later
and remained at Harvard for the rest of his life.
Chafee was a professor at Harvard Law
School for nearly forty years. His writings and
public service influenced many different areas of
civil liberties, from conditions for mine workers
to international HUMAN RIGHTS to the system
for apportioning U.S. House seats among the
states. His other books include America Now
(1938), Freedom of Speech in the United States
(1941), Government and Mass Communications
(1947), Documents on Fundamental Human
Rights (1951), Freedom of Speech and Press
(1955), and Blessings of Liberty (1956). Justice
FELIX FRANKFURTER wrote of Chafee, “The
extent to which . . . he influenced the thought
and temper of public opinion and action in that
pervasive aspect of national life known as CIVIL
RIGHTS has no match in the legal professoriate.”
Chafee’s goal in his legal writings was to
“master the law and reduce it to reason.” In the
area of free speech, this meant replacing intuition
with reason and producing a rational interpretation
of the First Amendment, which states
that “Congress shall make no law . . . abridging
the freedom of speech, or of the press.” The
notion of balance was a crucial element in his
legal philosophy. According to Chafee, most
legal problems could be solved by BALANCING
competing interests. In the case of free speech,
that meant balancing society’s competing interests
in the benefits of security and in the benefits
of unlimited discussion.
Chafee’s interest in free speech and civil liberties
began while he was teaching a course on
EQUITY at Harvard Law School during WORLD
WAR I. He became interested in the history of
LIBEL law and free speech, particularly as judges
across the United States began making ARBITRARY
and often conflicting decisions regarding
SEDITION (the act of urging others to rebel
against authority) and free speech during
wartime. In many cases, people who spoke out
or demonstrated against the wartime policies of the U.S. government were imprisoned for their
views. Such cases often involved two laws passed
by Congress, the ESPIONAGE ACT OF 1917 (ch. 30,
40 Stat. 217) and the Sedition Act of 1918 (ch.
75, 40 Stat. 553). Looking closely at the judicial
decisions regarding such cases, Chafee began to
see that laws regarding freedom of speech were
in great need of modernization.
Between 1918 and 1920 Chafee published
two articles—“Freedom of Speech” in the New
Republic (Nov. 16, 1918) and “Freedom of
Speech in Wartime” in the Harvard Law Review
(747 [June 1919])—and the book Freedom of
Speech (1920), which caused great controversy
and also made his reputation, associating him
for the rest of his career with free speech issues.
In these writings Chafee took aim against contemporary
interpretations of the First Amendment.
“Nearly every free speech decision,”
Chafee wrote in his law review article, “appears
to have been decided largely by intuition.”
Chafee sought to replace that intuition with
more informed legal reasoning.
In his articles and book, Chafee set forth his
views regarding the need to balance the competing
interests involved in speech issues. In the following
passage from Freedom of Speech, which
he described as the key passage of the book, he
defined the meaning of freedom of speech:
The true meaning of freedom of speech
seems to be this. One of the most important
purposes of society and government is the
discovery and spread of truth on subjects of
general concern. This is possible only
through absolutely unlimited discussion, for
. . . once force is thrown into the argument, it
becomes a matter of chance whether it is
thrown on the false side or the true, and truth
loses all its natural advantage in the contest.
Nevertheless, there are other purposes of
government, such as order, the training of the
young, protection against external aggression.
Unlimited discussion sometimes interferes
with these purposes, which must then
be balanced against freedom of speech, but
freedom of speech ought to weigh very heavily
in the scale. The First Amendment gives
binding force to this principle of political
wisdom.
Chafee gave an indication of just how “heavily”
freedom of speech weighed in the scale by
arguing in his law review article that free speech
should be tightly protected even in wartime:
Even after war has been declared there is
bound to be a confused mixture of good and
bad arguments in its support, and a wide difference
of opinion as to its objects. Truth can
be sifted out from falsehood only if the government
is vigorously and constantly crossexamined.
. . . Legal proceedings prove that
an opponent makes the best cross-examiner.
Consequently it is a disastrous mistake to
limit criticism to those who favor the war.
Chafee put his case more succinctly when he
wrote, “In wartime, speech should be free, unless
it is clearly liable to cause direct and dangerous
interference with the conduct of the war.”
Chafee’s views influenced the Supreme
Court in significant ways. In particular, Justices
OLIVER WENDELL HOLMES JR., and LOUIS D.
BRANDEIS closely studied Chafee’s ideas and
gradually liberalized their views on free speech.
For example, Chafee found fault with Holmes’s
opinion in SCHENCK V. UNITED STATES, 249 U.S.
47, 39 S. Ct. 247, 63 L. Ed. 470 (1919), upholding
the conviction of Charles T. Schenck, a secretary
of the Socialist party who had distributed
leaflets urging men to disobey the draft. Schenck
had been convicted under the Espionage Act. In
his famous opinion Holmes wrote that Congress
may restrict freedom of speech when there is a
“clear and present danger” that such speech will
bring about “substantive evils that Congress has
a right to prevent.” Chafee argued that Schenck’s
actions had not presented a direct danger and
that Holmes had not adequately defined what
exactly were the “substantive evils” society had
to be protected from. Chafee maintained that
only sedition that came dangerously close to
succeeding might be punished and that a better
test of free speech was whether it could gain
acceptance in the marketplace of free ideas.
Holmes later used Chafee’s ideas in his dissent
to ABRAMS V. UNITED STATES, 250 U.S. 616,
40 S. Ct. 17, 63 L. Ed. 1173 (1919), in which the
Court upheld the conviction of Jacob Abrams,
who had been sentenced to twenty years in
prison for distributing leaflets opposing U.S.
involvement in Russia. Chafee’s ideas also influenced
other Holmes and Brandeis dissents,
including those in GITLOW V. NEW YORK, 268
U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925).
The majority in Gitlow determined that the
Constitution did not bar the conviction under
New York’s criminal ANARCHY statute (Laws
1909, c. 88; Consol. Laws 1909, c. 40) of a socialist
who distributed a paper advocating that the
government be overthrown, even though no
effect whatsoever resulted from circulation of
the manifesto. And in another influential case,
NEAR V. MINNESOTA, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), Chief Justice CHARLES E.
HUGHES used Chafee’s ideas in an opinion that
voided a Minnesota law (Minn. St. 1927, §
10123–1) calling for the suppression of “malicious,
scandalous, and defamatory” publications.
Chafee’s views were not popular ones at the
time and he nearly lost his job because of them.
In 1921, he was brought before the Board of
Overseers of Harvard University on a charge of
radicalism for his questioning of the sentence
handed down in Abrams. Chafee defended himself
eloquently in a speech before a special committee
in the Boston Harvard Club and he was
allowed to remain at Harvard.
Chafee viewed himself as a reformer rather
than an activist. Although he often embraced
causes considered radical, he also was skeptical
of big government and described himself as a
“conservative . . . Rhode Islander steeped in the
Roger Williams tradition.” Speaking in the early
1920s of his interest in civil liberties, Chafee
commented;
I see no reason why I should be out mountain
climbing and enjoying life while some other
chap who started life with less money and
gets a little angrier and a little more extreme
should be shut up in a prison for five or ten
years. . . .When I am loafing around on my
boat, or taking an inordinately large number
of strokes on the golf course, I occasionally
think of these poor devils who won’t be out
for five or ten years and want to do a bit to
make the weight of society less heavy on
them.
Chafee never became an active member of
the AMERICAN CIVIL LIBERTIES UNION or that
organization’s National Advisory Committee.
Nor did he appear often in court. He did harbor
ambitions to become a Supreme Court justice
but was never nominated for the position.
Chafee wrote on many aspects of the law
besides free speech. In 1936 he drafted what he
considered to be his foremost professional
accomplishment, the Federal Interpleader Act
(May 8, 1926, ch. 273, 44 Stat. 416). This was a
highly specialized law designed to resolve multiple
claims for the same debt against insurance
companies, banks, and other businesses. Chafee
also became an authority on the mathematical
methods for reapportioning among the states
the seats in the U.S. House of Representatives.
His advocacy of the equal proportions method
for allotting House seats eventually led to
changes in federal law regarding APPORTIONMENT
after the 1940 census.
During his career Chafee served on a number
of committees that made important reforms
in U.S. law and society. Beginning in 1923 he was
chairman of the Committee of Inquiry on Coal
and Civil Liberties. This group produced a
report criticizing mine operators, their private
police, and their company towns, taking a position
that, like Chafee’s views on free speech, outraged
some influential Harvard law alumni.
From 1928 to 1932 Chafee was president of the
Massachusetts Council for the Abolition of the
Death Penalty. Between 1929 and 1931 he
worked for the National Commission on Law
Enforcement and Observance, also called the
WICKERSHAM COMMISSION, which looked into
POLICE MISCONDUCT during the era of PROHIBITION.
Some of Chafee’s more important work
occurred through his membership on the American
Bar Association’s Bill of Rights Committee
from 1938 to 1947. In this capacity he submitted advisory briefs in several Supreme Court cases.
In a case involving the refusal of Jehovah’s Witnesses
to have their children salute the flag in
school (West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed.
1628 [1943]), Chafee wrote a brief hoping to
persuade the Court to reverse an earlier decision
upholding a state law requiring a flag salute. In
his brief he made an eloquent case for freedom
of religion and freedom of expression.
Chafee became an advocate for international
human rights later in his career through his
work as a representative on the UNITED NATIONS
Subcommission on Freedom of Information
and the Press in 1947. In 1950, when Chafee’s
prestige and seniority at Harvard enabled him to
teach whatever course he wished, he chose to
offer a course called “Fundamental Human
Rights.” He hoped to have students realize “how
dearly these rights were bought and … what they
meant to the men who put them forever into
our fundamental law.”
Chafee received honorary doctor of law
degrees from St. John’s University, New York, in
1936, Brown University in 1937, and the University
of Chicago in 1953.He also received an honorary
doctor of CIVIL LAW degree from Boston
University in 1941 and a doctor of letters degree
from Colby College in 1944.
He died February 8, 1957, in Cambridge,
Massachusetts.

FURTHER READINGS
Re, Edward D. 1981. Freedom’s Prophet: Selected Writings of
Zechariah Chafee, Jr., University Professor, Harvard Law
School. New York: Oceana.
Smith, Donald L. 1986. Zechariah Chafee, Jr.: Defender of
Liberty and Law. Cambridge: Harvard Univ. Press.

CROSS-REFERENCES
Interpleader.