Free Speech, "The People's Darling Privilege": Struggles for Freedom of
Expression in American History.
Durham: Duke University Press, 2000. x + 520 pp. Notes index. $32.95
(cloth), ISBN 0-8223-2529-2 .
Jeffrey A. Smith , School of Journalism and Mass Communication, University
Popular Sentiment and the Protection of Speech
Freedom of expression is highly valued in democratic theory, but the liberty
is often hotly contested in practice. Those who take up a fight for the
right can have many motives. They may want to take a stand for a fundamental
principle, to preserve their own opportunity to persuade the public, or to
use the battle to batter an adversary who has resorted to suppression.
Michael Kent Curtis, a professor of law at Wake Forest University, is a
lawyer who has defended civil liberties many times in courtrooms. His book
emphasizes, as Alexander Hamilton and James Madison did, the importance of
public opinion in the determination of the actual boundaries of free speech.
Curtis believes that students of the law need to know the detailed stories
and popular traditions behind the decisions that are reached.
book's focus is not as wide as its vaporous title: Free Speech, "The
People's Darling Privilege": Struggles for Freedom of Expression in
American History. Most of the seventeen chapters describe the public
contests over free speech that erupted during the abolitionist movement and
the Civil War. Curtis contends that popular sentiment limited repression in
that volatile era and fostered the view that states should not abridge
freedom of expression. Protection of free speech, he says, was one of the
intentions behind the Fourteenth Amendment. He thus follows the thesis of
his earlier book, No State Shall Abridge (1990), which maintains that
the Fourteenth Amendment was intended to extend the protections of the Bill
of Rights to bind state and local governments.
offers the kind of rich narrative treatment that has been given to free
speech cases by scholars such as Irving Brant, Richard Polenberg, and Rodney
Smolla. The book describes both well-known incidents, such as the martyrdom
of abolitionist editor Elijah Lovejoy in Illinois
in 1837, and a number of relatively obscure episodes. A short chapter is
devoted to the case of Daniel Worth, an antislavery minister who ran afoul
of a North Carolina statute making it a crime to disseminate materials
tending to make slaves or free blacks unhappy with their lot. His 1859
conviction was upheld by the state's supreme court in 1860 with no mention
of the First Amendment. His counsel was engaged by Benjamin Hedrick who also
raised funds for his defense. Fearing mob violence, Hedrick had fled the
state earlier after being dismissed from a University of North Carolina
faculty position for publicly supporting the Republican presidential
candidate in 1856.
book shows how the Civil War and the constitutional changes that followed
were to some extent the results of violations of the spirit and guarantees
of the First Amendment in the South and in Washington, D.C. Suppression
ultimately backfired when used against those in the abolition movement who
felt a duty to democracy and the Deity to expose an evil even if social
strife would occur. Restrictions on distribution of their literature and on
their petitions to Congress shocked the sensibilities of Americans who took
pride in their freedoms. Rights, many thought, may or may not be listed in
constitutions, but in any case are inalienable endowments from the Creator.
book can describe the thousands of violations of civil liberties that
occurred before and during the Civil War, but this one collects incidents
that illustrate how a nation's thinking was divided over its most
fundamental freedoms. Curtis does an admirable job of examining the
rationales employed in the antebellum disputes over speech about slavery.
Bad-tendency and self-preservation logic is abundant in the attempts to
silence opponents of the nation's greatest shame, but the author finds more
First Amendment absolutism and religious argument than one might expect in
the defenses of freedom of expression. As he, David Rabban, and other
authors demonstrate, the years between the Sedition Act of 1798 and the
repression of World War I were not so much a time of dormancy for the First
Amendment as a period when it was mired in interpretations that diminished
observes that the need for suppression is often not as compelling in
hindsight as it appears during a controversy and that people often fail to
support free expression for their opponents. Ironies abound. Opponents of
slavery who decried restrictions on speech before the Civil War, for
example, showed little concern about First Amendment freedoms while in power
during the conflict.
author's analysis is rambling and repetitive at times, but the
story-telling is usually crisp and carefully contextualized. The chapters
are organized chronologically. Those summarizing First Amendment issues
before the 1830s and after the 1860s offer sound explanation and additional
context, but provide little fresh information or insight. They should help
readers with little knowledge of the topic. The central chapters, however,
make good use of a variety of sources including newspapers, correspondence,
and legislative debate. They show how the First Amendment road staked out by
the Founders is subject to the potholes, detours, and dead ends of politics
and individual emotion.
Curtis argues convincingly, principles can and should matter. Rights that
are not allowed by the majority or by the mob exist in name only. Respect
for democratic processes and a willingness to be tolerant of other
viewpoints often make the difference between genuine freedom and a
Constitution of empty promises.
Citation: Jeffrey A. Smith . "Review of Michael Kent Curtis, Free Speech,
"The People's Darling Privilege": Struggles for Freedom of Expression in
American History," H-Law, H-Net Reviews, July, 2001. URL:
“Although Michael Kent Curtis’s book…does not really
break significant new scholarly ground, it does have many virtues, including
that it is well-researched, clearly organized and written, and, especially,
that…it provides the first account to treat a variety of…disputes during the
1798-1865 period in substantial detail.”
review of Free Speech, “The People’s Darling Privilege”: Struggles for
Freedom of Expression in American History, by Michael Kent Curtis,
The American Journal of Legal History 44 (October 2000): 474-475.