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Holmes Is Persuaded for Freedom of Speech



Rob Hardy


We take for granted in America that we have freedom of speech. We have it, but it was not always so even after the First Amendment made it an unquestionable right. In fact, what "freedom of speech" means got its best clarification in the twentieth century, and the clarification came in a dissent within a Supreme Court decision in which the majority voted to have speech less free. How this decision came about, and how important the dissent was, is the story in . Healy is himself a law professor, and this is his first book, an American history of an idea and an attempt to describe the change of thinking of one of America's great legal legends. It is an appealing picture of Holmes, as he took in a broad swath of serious reading, paid attention to the opinions of his friends, and listened carefully to the ideas of those who disagreed with him. It is also an illuminating picture of how legal thought evolves not necessarily by legislation itself, but by chance, friendships, and improved social philosophy. 




Very soon after the Constitution was adopted, along with its Bill of Rights, freedom of speech came under attack. In 1798 the Federalists passed the Sedition Act, which banned "false, scandalous, and malicious statements" about the government. The argument was that there was a crime of seditious libel in the Mother Country, and that such a law was simply encompassed within the American system. Judges agreed, and indictments against those who had spoken out were upheld. Only when Thomas Jefferson became president did the law expire, and one no longer risked punishment for criticizing the government. Then in the early nineteenth century, freedom of speech was thought to be a federal matter, but states could reign in speech any way they saw fit. In 1907 there was a devastating decision by the Supreme Court that speech was free because there ought to be no prior restraint upon what you will say or will print; but once you have spoken out, you are liable for punishment if it is decided you have spoken somehow against the public welfare. The "no prior restraint" was an incorporation of the thought of William Blackstone, the English jurist, and progressives at the time found it as nonsensical as we do from our vantage of looking back into the past; what is the point of being free to say what one wants if you could still be punished merely for saying it?  




The issues needed clarification during the time of the First World War. There were communists, anarchists, and socialists, none of whom thought America's entry into the war would be a good thing, and then there were German and Russian sympathizers who agreed. They might speak out to change the way the government acted on the war, but those in the establishment, including Holmes, considered them dangerous. Their leaflets and rallies were forces of insurrection and destabilization, the thinking went, and Congress passed the Espionage Act of 1917 to keep the nation and the military from being disrupted by dissidents and spies. There were plenty of convictions, and appeals to the Supreme Court. In 1919, there were two cases the court dealt with that are the center of this book. In Schenck v. United States, the court considered what to do with some socialists who had distributed a leaflet that criticized the draft. The court upheld their conviction, and Holmes wrote the majority opinion, in which he found that the leaflet represented a "clear and present danger" (a phrase he introduced) because it would disrupt military operations. In his opinion, Holmes also wrote a famously pithy and clear explanation of how speech cannot be completely free: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." 




Months later, though, the court heard the case of Abrams v. United States, a case that was almost identical. Five Russian anarchist New York Jews threw from the rooftops leaflets condemning American intervention in Russia. Holmes had changed. Instead of going along with the majority of the court (and only Louis Brandeis joined him), he wrote a dissenting opinion against the conviction. Healy makes clear that although Holmes is known as "The Great Dissenter," he was not a contrarian. He didn't like confrontation, and he did like when he and his colleagues worked smoothly together. In writing his dissent, Holmes was again to put words to ideas that have formed the way we think about free speech. He said, "The best test of truth is the power of the thought to get itself accepted in the competition of the market. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge." The way a free society was to form a more nearly perfect knowledge was to have thoughts freely expressed. 




How did the change happen? Part of the explanation is that Holmes loved his intellectual friendships with young men who studied the law. (He also loved friendships with pretty young women, and they were, mostly, platonic.) He did not have children himself, and perhaps these young men represented his progeny. Chief among these relationships was his close friendship with Harold Laski, who visited Holmes when they were in the same region for summers off, and whose conversation, deep learning, and love of books (Holmes devoured his recommendations for reading) made for a warm and lifelong affection. Under Laski's respectful, sometimes flattering, questioning, Holmes began to question his own assumptions. He eventually allowed that there had been one freedom of speech case that if he had been on the jury he would have acquitted, but he did not feel right overruling a jury that had done its duty. All of this was a matter of legal theory, but it turned personal when Laski spoke in support of a strike by the Boston police union. It meant that Laski risked losing his job at Harvard for the crime of expressing political beliefs. While this may have been the biggest influence in Holmes's change of mind, Healy shows the influences of a chance meeting with Judge Learned Hand, discussions with future justice Felix Frankfurter, and the effects of Zechariah Chafee, a free-speech advocate and Harvard law professor. Chafee taught business law, and was not a progressive, but he argued that free speech broadened the search for and the spread of truth and thus made democracy stronger. Holmes had not been a champion of individual liberty, but he could understand free speech as a social good in promoting a majoritarian democracy.  




When Chafee wrote to Holmes to congratulate him on his change in Abrams, Holmes had an explanation of why he had changed his mind. Before Abrams, he said, "I simply was ignorant." The bustle of ideas from books and especially from his young friends had brought him better understanding. The understanding really was better, Healy shows in his fascinating account of the evolution of an idea; Holmes's dissent, championing the marketplace of ideas, is a guide to how we look at free speech now, from trying to stop unpopular involvement in wars to making erotic movies to the leaking of classified material. It is as if Holmes, having benefited from the free exchange of ideas with his young colleagues, were to bequeath to us his lesson: Don't be afraid of people speaking their ideas. You can find the truth eventually.



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