Things were different in many ways a century ago, but in one respect it was like all places at all times: there were insurance agents.
Robert T. Cheek of St. Louis, Missouri, was one of those insurance agents, selling policies in his hometown for the Prudential Insurance Company. In the 1910s, after many years of what he obviously considered faithful service, he left his job and began looking for work with another insurer. He asked his former employer, Prudential, for a letter describing his work and the reasons he left.
Prudential refused to provide such a letter. Without such a “service letter” from his prior employer, Cheek had trouble getting another job in the insurance field. Insurance, as he claimed, was pretty much what Cheek knew, and he didn’t want to go into another line of work where he didn’t have so much experience. He thought he was being blacklisted.
So he sued Prudential in a state court in St. Louis. In that part of the case which is relevant for our purposes, Cheek said that Prudential had violated Missouri’s “service letter” statute. Missouri law required that an employee who had worked 90 days or longer for an employer could demand that his ex-boss provide a letter saying that he used to work for that boss, and explaining why he doesn’t work for that boss any longer.
States like Missouri which passed these “service letter” laws were concerned about employer blacklists. If an employee had crossed his ex-boss, the boss might just decide not to help that employee get new work. But if the boss was forced to give a service letter, the employee could obtain information about his work history, without which new employers might not want to take a chance on him. And if the ex-boss gave the former employer a bad reference, the employee could sue for defamation.
The trial court in Missouri threw out Cheek’s suit. Sure, Prudential hadn’t given Cheek a “service letter,” but it didn’t have to do so. Anyone, even an insurance company, has the right to free speech, which includes the “right of silence” – that is, the right not to talk.
Precedents from other states, like Georgia, indicated that service-letter statues violated the freedom not to speak, and therefore violated the freedom of speech as constitutionally guaranteed by state constitutions. Of course, a company didn’t have the right to lie about former employees – that would be defamation. But if an employer didn’t want to talk about an ex-employee, it shouldn’t be forced to talk.
Cheek took the case to the Supreme Court of Missouri, which in 1916 gave Cheek a victory and upheld the “service letter” law. Those other courts which had talked about a constitutional right to silence were simply out of harmony with the up-to-date enlightened principles of 1916. After all, all that the service letter law demanded was that a company give truthful information about former employees who had worked for them for three months or more. Disclosing accurate information – how could mandating that violate any company’s rights? The court spoke of the legislative struggle against blacklisting, and how the service letter law was a modest tool to help victims of that iniquitous practice.
Now it was Prudential’s turn to appeal, all the way to the United States Supreme Court. To defend his position, and the Missouri service letter law, Cheek had Frederick H. Bacon as his attorney.
Bacon, a Michigan native who practiced law in Missouri, had written a textbook on insurance law. Perhaps Cheek hired Bacon because of the attorney’s knowledge of the insurance industry, although this was not a specifically insurance-oriented case, but a broader labor-law case. And, as it turned out, a First Amendment case.
In those days, pretty much anyone with enough money could take their case to the United States Supreme Court. So many people exercised this right that there was a bit of a backlog, which may be why it took until 1922 for the U. S. Supremes to give their opinion in Prudential Insurance Company v. Cheek.
Most of the opinion dealt with the issue of economic freedom – in those days the Supremes still recognized the right of businesses to operate free from arbitrary government restrictions. But Missouri’s service-letter law was not arbitrary, said the majority opinion. Companies just had to provide accurate information about former employees. It wasn’t like Missouri was trying to cartelize the ice business or anything oppressive like that.
But the Supremes still had to deal with Prudential’s argument based on free speech, and the corollary right not to speak. Remarkably, the Supremes had not yet decided, one way or another, whether the First Amendment’s rights of free expression even applied to the states.
In 1907, the Supreme Court assumed, for the purpose of argument, that the 14th Amendment required the states to respect freedom of the press. But Thomas Patterson, said the Court, had abused his freedom of the press by criticizing the decisions of the Colorado Supreme Court in his newspaper, for which the state supreme court could legitimately convict him of contempt. Patterson, owner of the Rocky Mountain News and an influential Democrat, had run editorials and cartoons accusing the Colorado Supremes of acting in subservience to corporate interests when it awarded elections to Republicans and abolished home rule for the state’s cities.
In a case arising out of the First World War, the Supreme Court assumed, for the purpose of argument, that the 14th Amendment required the states to respect freedom of speech. But Joseph Gilbert, said the court, had abused his freedom of speech, and could legitimately be punished by the state of Minnesota for making the following wartime remarks:
We are going over to Europe to make the world safe for democracy, but I tell you we had better make America safe for democracy first. You say, what is the matter with our democracy? I tell you what is the matter with it: Have you had anything to say as to who should be President? Have you had anything to say as to who should be Governor of this state? Have you had anything to say as to whether we would go into this war? You know you have not. If this is such a good democracy, for Heaven’s sake why should we not vote on conscription of men? We were stampeded into this war by newspaper rot to pull England’s chestnuts out of the fire for her. I tell you if they conscripted wealth like they have conscripted men, this war would not last over forty‑eight hours…
(If you’re interested, here is a highly sympathetic biography of Mr. Gilbert.)
In both of those cases the Court had assumed, without deciding, that the states had to respect freedom of expression. The issue hadn’t affected the outcomes of those cases because the Justices didn’t think freedom of expression applied to the insidious activities of Patterson and Gilbert.
Now, suddenly, the Justices decided it was time to make an official ruling: Do the states have to obey the First Amendment? In other words, do the basic rights protected by the Fourteenth Amendment against the states include free expression (subject to common-sense regulations such as suppression of wartime dissent)?
Here’s how the Supremes answered that question in Cheek’s case:
the Constitution of the United States imposes upon the states no obligation to confer upon those within their jurisdiction either the right of free speech or the right of silence….
Cheek won, and Prudential and the First Amendment lost.
Apparently, Cheek was able to get back into the insurance business. When he died in 1926, his death certificate said that at the time of his decease he had been an insurance agent for the “Missouri State Life Co.”
The year before Cheek’s death, the Supremes were back to their old tricks, refusing to say whether states have to respect the First Amendment’s rights of free expression. This was in a case involving a Communist firebrand, Benjamin Gitlow, who had written a manifesto advocating revolution. In a key paragraph, the Court said:
For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek…that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.
Then the Supremes went on to do what they had done in the cases of Patterson and Gilbert – they declared that Gitlow had abused his First Amendment freedoms and could rightly be punished for it, even if the First Amendment applied to the states.
(Gitlow later left the Communist Party and published a memoir entitled I Confess: The Truth About American Communism.)
So it was back to the old drawing board – the applicability of the First Amendment to the states was still officially unresolved.
The first of these decisions said that both the federal and state governments have to respect your right to wave a communist flag. The second decision said that the government (whether state or federal) can’t shut down a newspaper as a “public nuisance.”
(Here is a book about the freedom-of-the-press case, Near v. Minnesota).
Neither in their published opinions nor in their private papers through 1931 did the Justices engage in any detailed examination of the question of “incorporation” – whether the states had to obey the First Amendment and if so, why. The Supremes just veered from one side to another, almost as if they were flying by the seat of their pants and not acting on any coherent principle. It was only later, in subsequent cases, that the Justices began working out various rationales for applying the First Amendment to the states (TL;DR version – because free expression is a Good Thing and is Good for Democracy).
A good guess would be that, when the Supremes were unenthusiastic about free expression, they weren’t that interested in imposing it on the states, but when (as in the 1931 cases) they got interested in free expression, they decided it was time to make the states as well as the feds respect that right.
Many states still have service-letter laws to this day. Check your local listings.
Floyd Abrams, The Soul of the First Amendment. New Haven: Yale University Press, 2017, pp. 60-62.
“Anti-Blacklist Law Upheld,” Iron County Register (Ironton, Missouri), December 7, 1916, http://bit.ly/2rjmnTh
Ruth A. Binger and Tracy R. Ring, “BEWARE – PROCEED CAUTIOUSLY – WHAT THE MISSOURI EMPLOYER SHOULD KNOW ABOUT THE SERVICE LETTER STATUTE AND DEFAMATION.” St. Louis: Danna McKitrick, P.C., Attorneys at Law, WWW.DANNAMCKITRICK.COM, 2003.
Vickie Caison, “Bacon, Frederick H.” Friends of Silverbrook Cemetery, last updated November 22, 2010, http://www.friendsofsilverbrook.org/site4/obituaries/95-bacon-frederick-h
Russell Cawyer, “Texas Has No Enforceable Service Letter Statute,” Texas Employment Law Update, December 2, 2011, http://www.texasemploymentlawupdate.com/2011/12/articles/human-resources/texas-has-no-enforceable-service-letter-statute/
“Robert T. Cheek,” St. Louis, Missouri City Directories for 1910, 1913 and 1916, Ancestry.com. U.S. City Directories, 1822-1995 [database on-line]. Provo, UT, USA: Ancestry.com Operations, Inc., 2011.
Richard C. Cortner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties. Madison, WI: University of Wisconsin Press, 1981.
“Frederick H. Bacon,” Find a Grave, https://www.findagrave.com/cgi-bin/fg.cgi?page=gr&GSln=bacon&GSfn=frederick&GSmn=h&GSbyrel=all&GSdyrel=all&GSob=n&GRid=60501380&df=all&
Klaus H. Heberle, “From Gitlow to Near: Judicial ‘Amendment’ by Absent-Minded Incrementalism,” The Journal of Politics, Vol. 34, No. 2 (May, 1972), pp. 458-483
“Labor and Employment Laws in the State of Missouri,” Fisher and Phillips LLP, Attorneys at Law, www.laborlawyers.com.
“Master and Servant: Blacklisting Statute: Failure to Give Service Letter,” Michigan Law Review, Vol. 8, No. 8 (Jun., 1910), pp. 684-685
Ruth Mayhew, “States that Require an Employment Termination Letter,” http://work.chron.com/states-require-employment-termination-letter-24010.html
Missouri State Board of Health, Bureau of Vital Statistics, Death Certificate for Robert T. Cheek, St. Louis, Missouri, c. March 1926 [courtesy of Ancestry.com]
“Online Books by Frederick H. Bacon,” Online Books Page, University of Pennsylvania, http://bit.ly/2r9YTDm
Robert Gildersleeve Patterson, Wage-Payment Legislation in the United States. Washington: Government Printing Office, 1918, p. 75
James Z. Schwartz, “Thomas M. Patterson: Criticism of the Courts,” in Melvin I. Urofsky (ed.), 100 Americans Making Constitutional History: A Biographical History. Washington, DC: CQ Press, 2004, pp. 154-56.
Ralph K. Soebbing,”The Missouri Service Letter Statute,” Missouri Law Review, Volume 31, Issue 4 Fall 1966 Article 2 Fall 1966, pp. 505-515.