Richard Nisley


A Change of Head & Heart
History - American Released - Jul 31, 2016

It was like a religious conversion—a profound altering of thought, a decided charge of heart, and a rechartering of course. For Supreme Court Justice Oliver Wendell Holmes the conversion came late in life, at age 78. We are speaking about a landmark Supreme Court decision involving free speech—“Abrams v. United States” (1919)—which gave birth to our modern era of the First Amendment. Holmes’s dissenting opinion is the subject of THE GREAT DISSENT, a recent book by Thomas Healy. Mr. Healy is a graduate of Columbia Law School and a professor of law at Seton Hall Law School in Newark, New Jersey. His writing is clear, direct, and easily understandable. Abraham Lincoln would have approved.

Justice Oliver Wendell Holmes was a brilliant and incisive thinker with a gift for coining memorable turns-of-a-phrase in his Court opinions. “Clear and present danger” (from “Schenck v. United States”) is one of them. But he also had an inflexible and stubborn streak, too. Civil libertarians were drawn to him because of his brilliance, but were appalled by his First Amendment opinions, which flew in the face of political tolerance. In particular, the free speech cases involving the U.S. government—“Schenck,” “Frohwerk,” and “Debs”—Holmes ruled against the defendants by reasoning that their speeches threatened national security in a time of war.

The Constitution is quite clear on the subject: “Congress shall make no law . . . abridging the freedom of speech.” But the Supreme Court itself had never ruled in favor of free speech—ever—and lower courts had approved all manner of speech restrictions, including the censorship of books and films, the prohibition of street corner speeches, and assorted bans on labor protests, profanity, even commercial advertising. Holmes was consistent in agreeing with these rulings. He was, after all, an advocate of judicial restraint—the idea that judges should defer to the judgment of elected officials.

Enter three individuals determined to change Holmes’s mind: Learned Hand, a federal judge in New York; Harold Laski, an Englishmen and Harvard history professor; and Zechariah Chafee, a Harvard law professor. Over a period of eight months in 1919, they engaged Holmes in person and in letters with what amounted to a series of legal briefs in support of free and unfettered speech as a safeguard of democracy, yes, even in times of war. To support their arguments they quoted from progressive thinkers, notably John Milton and John Stuart Mill. Were their arguments strong enough to change Holmes’s mind? They didn’t know for sure until Holmes issued his dissenting opinion in “Abrams v. United States,” a case centered on five Russian Jews in New York who had issued leaflets condemning U.S. involvement in World War I. Did their leaflets threaten national security? That was the question. Seven Supreme Court Justices said they did. But Holmes, who was slated to write the Court’s majority opinion, looked at the evidence a second time and changed his mind. He found nothing in their leaflets that advocated any violation of law or obstruction of war production, nothing that presented “a clear and present danger” to national security. “It is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against popular government,” Holmes wrote, “not to impede the United States in the war that it was carrying on.” Their words didn’t “so imminently threaten immediate interference” with government’s lawful purpose or programs “that an immediate check is required to save the country.” Holmes then went to the heart of the issue:

“(W)hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by the 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. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.” Further on he wrote: “While that experiment is part of our system I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country.”

Except for Justice Louis Brandeis, who sided with Holmes, the other justices of the Court never embraced Holmes’s dissenting opinion. But as John Stuart Mill pointed out, opinions change. What passed for truth 1,000 years ago, 500 years ago, or even 100 years ago, may seem silly to us today. Supreme Court opinions, however "legal" and well-reasoned, are merely that--opinions. Like Holmes, the High Court would undergo a change of opinion—in 50 years. In a 1969 case involving a Ku Klux Klan member who advocated violence against the civil rights movement, the Court held that advocacy of violence or unlawful conduct is protected by the First Amendment “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” This rule is a direct descendant of Holmes’s test and remains the governing standard today.

“Holmes’s dissent in ‘Abrams’ marked not just a personal transformation but the start of a national transformation as well,” writes Healy. “The power of his words and the force of his personality gave his opinions an authority far beyond the normal judicial dissent. Civil libertarians immediately embraced it as an article of faith, and Holmes’s tribute to the ‘free trade in ideas,’ along with his concept of ‘clear and present danger’ became not only cultural catchphrases but, in time, the law of the land. Indeed, it is no exaggeration to say that Holmes’s 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.”

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