Flip-flopping on Free Speech
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The Great Dissent: How Oliver Wendell Holmes Changed His Mind — and Changed the History of Free Speech in America
author: Thomas Healy
publisher: Metropolitan Books
pub date: 08.20.2013
pp: 336
tags: Memoir & Essay , Biography & Autobiography

Stephen Rohde on The Great Dissent: How Oliver Wendell Holmes Changed His Mind — and Changed the History of Free Speech in America

Flip-flopping on Free Speech

January 9th, 2014 reset - +

WHY DO PEOPLE change their minds? We’re not talking about switching restaurants or picking different socks to wear. Once a person makes a serious commitment to something important, something they see as closely aligned with their worldview and reputation, why do people reconsider that commitment, and how do they come to different, indeed opposite, conclusions?

 In March 1919, the most illustrious figure in American law, Supreme Court Justice Oliver Wendell Holmes Jr., speaking for a unanimous court, upheld the Espionage Act convictions of Eugene Debs and several other socialists, who opposed the United States going to war. But by November 1919, barely eight months later, Holmes had changed his mind. The majority of the Court affirmed the convictions of a group of Jewish anarchists under the Sedition Act by simply relying on Holmes’s earlier opinion. But Holmes instead wrote a powerful dissent, joined by Justice Louis Brandeis, upholding First Amendment protection for antiwar speech.

In The Great Dissent: How Oliver Wendell Holmes Changed His Mind — and Changed the History of Free Speech in America, Thomas Healy uses this fascinating transformation in Holmes’s thinking about the First Amendment to explore the very invention of free speech in the Supreme Court.

Few remember that by 1919 the First Amendment, as Healy puts it, “was still largely an unfilled promise.” The Supreme Court had never ruled in favor of a free speech claim, and lower courts had approved “censorship of books and films, the prohibition of street corner speeches, and assorted bans on labor protests, profanity, and commercial advertising,” as well as penalizing the criticism of government officials which threatened “public order and morality.”

In March 1919, the Court was confronted with a group of cases arising under the Espionage Act that tested the limits of free speech in wartime. Charles Schenck was convicted of conspiracy to cause insubordination and to obstruct recruiting for distributing leaflets attacking the constitutionality of the draft. Jacob Frohwerk, the editor of a German-language newspaper, was convicted for publishing articles that claimed the country went to war to appease Wall Street bankers. And Eugene Debs, the founder of the Socialist Party of America and a four-time candidate for president, was convicted of inciting disloyalty in the military and obstructing the draft for giving a speech in Canton, Ohio.

Applying long-held views borrowed from British law, Holmes led the entire Court in affirming all of these convictions and upholding long prison sentences. “The most stringent protection of free speech,” Holmes famously wrote, “would not protect a man in falsely shouting fire in a theater and causing a panic.” The question is whether the words create “a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

In Abrams v. United States, five Russian Jews in New York City who had joined the anarchist movement, and who were deeply dedicated to social revolution and the emancipation of the working class, gathered in an East Harlem apartment, where they printed and circulated two leaflets condemning US intervention in Russia. One, written in English, was entitled “The Hypocrisy of the United States and Her Allies,” and accused President Wilson of deceiving the American people. “He is too much of a coward to come out openly and say: ‘We capitalists nations cannot afford to have a proletarian republic in Russia.’” The second flyer, written in Yiddish, was entitled “Workers — Wake Up” It declared: “Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.”

In Abrams, Holmes dissented and voted (with Brandeis) to reverse the convictions of the anarchists. Healy writes,

It is no exaggeration to say that Holmes’ dissent — the most important minority opinion in American legal history — gave birth to the modern era of the First Amendment, in which the freedom to express oneself is our preeminent constitutional value and a defining national trait.

Healy asks why Holmes, “a man who sneered at liberal sentimentality his whole life,” would “write one of the canonical statements of American liberalism, a document that has been compared to the speeches of Lincoln and the essays of Milton?”

In an engaging narrative suitable for lawyer and nonlawyer alike, and which reads like a legal mystery story, Healy digs deep to find the people, books, and ideas that influenced Holmes to change his mind. After all, according to Healy, by this point in his long and honored career, Holmes had become “a believer in society’s right to impose its will on the individual,” and “he thought persecution of dissenters made perfect sense.” Having taken up arms in the Civil War against his fellow countrymen (and been wounded several times), Holmes had risked his life to suppress insurrection, and he was not prepared to offer the sacred protection of the Constitution to disloyal dissenters who railed against the government, undermining the war effort while young men were dying in Europe.

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Once the Court had finished its business in the spring of 1919, including sealing the fate of Debs and the others, Holmes and his wife, Fanny, escaped from the heat of Washington to spend the summer at Beverly Farms, 45 minutes outside of Boston. Holmes loved this retreat, and it was here that he met with a remarkable group of intellectuals, including Harold J. Laski and Zechariah Chafee Jr.

Laski, whom Holmes fondly called the “smart chap” and “one of the most learned men I’ve ever known of any age,” was then just 24 years old (to Holmes’s 77). An instructor in history at Harvard and a contributor to the New Republic, he had recently arrived from England, where as a student at Oxford he was one of the most vocal members of the student union. The son of Jewish immigrants from Poland, Laski was a militant suffragist and revolutionary syndicalist. Healy characterizes him as “brilliant, prolific, charming, effusive, irrepressible, and a notorious self-promoter.”

In the pivotal summer of 1919, Holmes frequently invited Laski to his vacation home for long talks and lively debates on law, history, economics, and philosophy. In return, Laski lavished Holmes with books to help satisfy the justice’s boundless appetite for reading (contributing to the over 50 books Holmes read that summer). He gave Holmes a biography of Francis Place, the 19th-century British social reformer who fought against the Stamp Act on newspapers; The History of English Rationalism in the 19th Century, an account of the triumph of science and logic over religious dogma; and The History of English Democratic Ideas in the 17th Century, a chronicle of the emergence of political liberalism during and after the English Civil Wars.

But Laski was most eager for Holmes to read an article by Chafee, published in the June issue of the Harvard Law Review, “Freedom of Speech in War Time.” Chafee’s background was more like Holmes’s than Laski’s. The scion of a wealthy Rhode Island family, he taught business law at Harvard. One could hardly have predicted he would have such a seminal impact on broadening protection for free speech, given that in law school he signed a petition to boycott a Boston newspaper because of its political views and lobbied to shut down a play about a young woman who leaves her job at a department store to become the mistress of a wealthy man, fearing that the play might “persuade real salesgirls to follow the heroine’s example.”

Healy suggests, however, that fighting tyranny was in Chafee’s blood, because he was “descended from the great Rhode Islander Roger Williams, who had dedicated his life to the cause of religious freedom.” In his Harvard Law Review article, Chafee crafted a masterful critique of Holmes’s opinions in the Espionage cases decided earlier that year. Chafee had vainly hoped that Holmes would “concentrate his great abilities on fixing the line” between protected and unprotected speech.

In the article he chided Holmes for taking aim at easy targets and pronouncing that there was no First Amendment protection for a man who falsely yells fire in a crowded theater and causes a panic. “How about the man who gets up in a theater between the acts and informs the audience honestly but perhaps mistakenly that the fire exits are too few or locked? He is a much closer parallel to Schenck or Debs.” The question, according to Chafee, “whether such perplexing cases are within the First Amendment or not cannot be solved by the multiplication of obvious examples, but only by the development of a rational principle to mark the limits of constitutional protection.”

Ingeniously, Chafee found that principle in plain sight: Holmes’s own opinion in Schenck. Chafee seized on a casual comment Holmes had written to support the convictions and turned it into a legal standard far more protective of free speech. Holmes had written that the question in every case is whether the words are used “to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Chafee tightened the link between the “words” and the “evils.” Prosecutors would have to prove that “the harm was real and imminent, not merely speculative and remote.”

But Chafee did not stop at turning Holmes’s words against him. He faulted the justice for not paying adequate attention to the values underlying the First Amendment. “It is regrettable that Justice Holmes did nothing to emphasize the social interest behind free speech, and show the need of balancing even in war time.”

Laski was not content to just give Holmes a copy of Chafee’s article. In July 1919, Laski invited Holmes and Chafee to tea at his home in Rockport. What anyone who cares about the First Amendment would have given to be a fly on the wall at that critical meeting. Laski and Chafee forcefully presented their case while Holmes politely engaged them, going only so far as saying that had he been on the jury in the Debs trial, he might have voted for acquittal. But afterward, Chafee wrote that he was not optimistic because Holmes still seemed “inclined to allow a very wide latitude” to the government when it came to suppressing speech in time of war.

But what Chafee didn’t know is that these momentous issues continued to preoccupy Holmes’s thoughts as he spent the rest of the summer reading more of the books Laski had given him, including The Decline of Liberty in England, written in 1916 by E. S. P. Haynes, a well known British lawyer and author, who argued that individual freedom in England was being chipped away by growing state interference. Haynes complained that censorship was spreading and a mob mentality was overtaking the country. Worse yet, judges had abdicated their responsibilities and were deferring to the “wishes” and “unchecked power” of the Executive, leading to “an increasingly tyrannical collectivism which would destroy the freedom of the individual to discuss any problems except from the collectivist point of view.”

Laski’s carefully selected reading list was having an impact on Holmes. Toward the end of the summer, in a letter to a close friend, Holmes expressed deep concern that the “whole collectivist tendency seems to be toward underrating or forgetting the safeguards in the bills of rights that had to be fought for in their day and that still are worth fighting for.” Foreshadowing the historic dissent he would write just a month later, Holmes added:

We have been comfortable so long that we are apt to take it for granted that everything will be all right without our taking any trouble. All of which is but a paraphrase of eternal vigilance is the price of freedom.

Holmes returned to Washington, and on October 21, 1919, the Court heard oral arguments in Abrams. But at the very same time Holmes was considering the briefs and arguments involving the Jewish anarchists, he was forced to confront the importance of free speech much closer to home involving none other than his good friend Laski. The Boston police had gone on strike demanding better pay and working conditions, and Laski had come to their defense, writing and speaking in favor of workers’ rights to organize. Laski was condemned as a “boudoir Bolshevist,” and the Harvard board of overseers scheduled a hearing to consider his removal from the faculty.

Laski reached out to Holmes for help. In a heartfelt letter dated October 26, 1919, Holmes declined to intervene, but wrote that, “I fear we have less freedom of speech here than they have in England,” calling it “a theory I hope I would die for.” Healy observes that this letter captures “the extent to which his views on free speech had evolved since the previous June.”

What had been merely an abstract question for Holmes over the past year was, suddenly, concrete and personal. The face of free speech was no longer Eugene Debs, the dangerous socialist agitator. It was his good friend Harold Laski, and Holmes’s views shifted accordingly — and dramatically.

Holmes turned from his letter to Laski to write his 12-paragraph dissent in Abrams, which, according to Healy, “would change the history of free speech in America.” Fundamentally, Holmes disavowed what he had written barely eight months earlier and declared that despite the “dangers peculiar to war,” the “principle of the right to free speech is always the same,” in times of war as in times of peace. The chapter Healy devotes to describing Holmes’s dissent is some of the best and most accessible writing on a legal subject one will find. For Healy, the dissent was summed up in “one rich, profound, and unforgettable sentence”:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundation of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

In this one sentence, Healy writes, this one “brilliant expression of constitutional faith,” Holmes’s entire career culminated, as if he had been working toward it his entire life.

[Through] the intervention of his friends and his own willingness to adapt, he had come to see free speech from a different, more personal perspective. And from that moment forward, he became the champion of the First Amendment we know him as today, writing passionate dissents on behalf of radicals and subversives throughout the rest of his career.

In 1969, 50 years later, the Supreme Court adopted Holmes’s dissent as the law of the land. In Brandenburg v. Ohio, involving threats of violence by the Ku Klux Klan, the Court held that even advocacy of violence or unlawful conduct was protected by the First Amendment, unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” According to Healy, in “nearly every area of First Amendment law, his Abrams dissent continues to make its presence felt.”

[Holmes’s] metaphor of the marketplace of ideas and his concept of “clear and present danger” have worked their way into our collective consciousness, becoming part of our language, our view of the world, and our identity as a nation.

Healy ends his compelling and timely book by recalling what Holmes told the graduating class at Harvard in 1886 about “the secret isolated joy of the thinker who knows that, a hundred years after he is dead and forgotten, men who never heard of him will be moving to the measure of his thought.”

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Stephen F. Rohde is a lawyer specializing in constitutional, civil rights, and appellate law, and is the author of American Words of Freedom and Freedom of Assembly.

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