The Liberty to Argue Freely: Nineteenth-Century Obscenity Prosecutions and the Emergence of Modern Libertarian Free Speech Discourse

Abstract

This research examines the prosecutions of four noted libertarians: free love advocate Ezra Heywood; Dr. Edward Bond Foote, a well-known New York physician and medical publisher; two prominent free thought publishers, DeRobigne M. Bennett and Moses Harman; and the subsequent libertarian campaign for broad First Amendment protection for all citizens which ensued from their arrests and prosecutions. That individuals were putting forth a libertarian philosophy of free expression in the 1870s (albeit largely under the auspices of individual rights rather than the later interpretation of social benefits), demonstrates the formative period of modern First Amendment development occurred decades earlier than is often acknowledged. The research argues that these liberal thinkers, all too cognizant of the suppression power of obscenity statutes, sought, and eventually helped to create, an expansive interpretation of the First Amendment. As will be demonstrated, these libertarians brought the related issues of the social and legal boundaries of freedom of expression and federal First Amendment protection for ideas, which heretofore were not part of common social discourse, into the public arena. By emphasizing the necessity of free expression rights in a democratic society, the libertarians hoped to spur broad public, legal, and legislative discourse about the First Amendment, its applications, and the limits of state legal controls over individuals and society.