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Free Expression and Democracy in America

A History

From the 1798 Sedition Act to the war on terror, numerous presidents, members of Congress, Supreme Court justices, and local officials have endorsed the silencing of free expression.  If the connection between democracy and the freedom of speech is such a vital one, why would so many governmental leaders seek to quiet their citizens? Free Expression and Democracy in America traces two rival traditions in American culture—suppression of speech and dissent as a form of speech—to provide an unparalleled overview of the law, history, and politics of individual rights in the United States.

Charting the course of free expression alongside the nation’s political evolution, from the birth of the Constitution to the quagmire of the Vietnam War, Stephen M. Feldman argues that our level of freedom is determined not only by the Supreme Court, but also by cultural, social, and economic forces. Along the way, he pinpoints the struggles of excluded groups—women, African Americans, and laborers—to participate in democratic government as pivotal to the development of free expression.  In an age when our freedom of speech is once again at risk, this momentous book will be essential reading for legal historians, political scientists, and history buffs alike.

544 pages | 6 x 9 | © 2008

History: American History, History of Ideas

Law and Legal Studies: Law and Society, Legal History, The Constitution and the Courts


“Blending together a discussion of how such notions as the public good, virtue, rights, citizenship, and value relativism are rtransformed from one era to another, Feldman subtly explains how constitutional doctrine on free expression evolves both within and across eras. . . . He offers readers a useful place to begin pondering this difficult topic. Highly recommended.”


“This book is the best comprehensive overview of the law, history, and politics of free expression in America ever published. Stephen Feldman’s history is confident, sure-footed, and scrupulously accurate. His interpretations and explanations for subtle shifts and developments in the law of free expression are convincing and, quite often, thrilling. I cannot recommend it highly enough.”

Ken I. Kersch, Boston College

Free Expression and Democracy in America is a splendidly detailed study of free speech in the United States. It is likely to set the standard in the field for many years to come. Feldman does a masterful job integrating American democratic and jurisprudential traditions.”

Alexander Tsesis, author of We Shall Overcome: A History of Civil Rights and the Law

“Professor Feldman details all the major free speech fights in the history of the United States from colonial days until the end of the Vietnam War. As is the case with good comprehensive histories, this book hits all the classics and suggests a number of themes that unite disparate strands of American free speech history, most notably the transition from a republican democracy to pluralist democracy.”

Mark Graber, University of Maryland School of Law

"Feldman is to be congratulated for his rigorous blending of judicial history, American history, and constitutional jurisprudence, all the while keeping dissent and suppression at the fore."

Jerome O'Callaghan | Law and Politics Book Review

"A valuable addition to the literature of free speech and the most complete historical discussion of the topic."

L.A. Scott Powe Jr. | Journal of American History

Table of Contents


1 Democracy and Free Expression       

Dimensions of Free Expression
The English and Colonial Background  

2 Republican Democracy from the Revolution through the Civil War     

Establishing the Parameters: The Revolution to the Framing       
Republican Democracy in American Society     
Judicial Review under Republican Democracy  
Changing Interpretations of Republican Democracy      

3 Free Expression in the Early Years    

The Revolutionary Period         
The Framing and the Bill of Rights        

4 The Sedition Act Controversy           

Politics, Expression, and Republican Democracy in the 1790s   
The Alien and Sedition Acts     
Consequences of the Sedition Act Prosecutions

5 Free Expression in the Nineteenth Century to 1865

In the Wake of the Sedition Act Controversy   
The Traditions of Dissent and Suppression       
Assessing the Status of Free Expression           

6 Republican Democracy from Reconstruction through 1920    

Strains on Republican Democracy        
The Same, yet Different           
Populism and Progressivism     
Judicial Review in a Time of Stress       

7 Free Expression, American Society, and the Supreme Court  

Immorality, Expression, and Libertarian Theory
Protecting the Government: Libel and Contempt           
Liberty and Labor        
The Supreme Court and Free Expression: The Early Cases       

8 Free Expression during the World War I Era 

World War I and Suppression 
The Supreme Court and the War         

9 Transition to Pluralist Democracy      

The 1920s       
The Modern Intellect, the Great Depression, and the Doubting of Democracy   
The New Deal and Pluralist Democracy           
The World in Crisis and the Development of Pluralist Democratic Theory          
Struggles to Fulfill the Promise of Pluralist Democratic Theory   

10 Pluralist Democracy and Judicial Review     

Crisis and Change
The Puzzle of Pluralist Democratic Judicial Review       

11 Free Expression, Pluralist Democracy, and the Supreme Court        

Free-Expression Doctrine and Theory after the 1937 Turn        
The Politics of Free Expression

12 The Traditions of Dissent and Suppression in the Pluralist Democratic Regime          

World War II  
Red Scare       
Vietnam War   

13 Open Questions


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