Over One Hundred Years Ago, Oliver Wendell Holmes Jr. Wrote an Eloquent Justification of Freedom of Speech. Is it valid today?

In this post, I will examine the life of Justice Oliver Wendell Holmes, Jr., and speculate about how he came to formulate the justification of freedom of speech that he wrote in his great dissent from the Supreme Court’s decision in Abrams v. the United States (1919). I believe that if Holmes’ justification of freedom of speech were more widely known and better appreciated, there would be fewer self appointed censors of speech on the right and left. And if it were commonly understood what free speech is, it would be more difficult to hand a manila envelope stuffed with cash to a Congressman with power to make or break a particular piece of legislation, and claim that one was only exercising one’s First Amendment rights.

What Sort of Hero Is Oliver Wendell Holmes Jr?

When I was a kid, I had a hunch that turned out to be — pretty good for a kid’s. This was, that Oliver Wendell Holmes Jr. (1841 – 1935) was someone whom I could make my hero. When I saw The Mind and Faith of Justice’ Holmes, a hefty Modern Library Giant edited by Max Lerner, on sale at Gelsanliter’s Office Equipment Store, in Mount Vernon, Ohio, I bought it. I laid it aside not long after, though. I was fifteen years old and Oliver Wendell Holmes was a grade or two above my reading level. My belief that Holmes was a hero of some sort nevertheless persisted in my mind, maybe because of his flamboyant mustache, which seemed to say “Here I am and to hell with you.”

My interest in Justice Holmes was later revived by Edmund Wilson. In his book Patriotic Gore (1962), Wilson made the case for Holmes as an important figure in American intellectual and cultural history. But Wilson also pointed out that although Holmes as a judge had sometimes ruled in favor of liberal causes — and I considered myself a liberal by now — he wasn’t a liberal himself. He had little sympathy with most progressive efforts to improve the lot of working men and women — liberalism, abolitionism, Fourierism, anarchism, conservatism — because of how they can lead to violent conflict and death, as in the Civil War.

Then, as I learned more, I began to see that Holmes could not be easily categorized.

Bad Holmes, Good Holmes

Holmes’s legacy, I found, consists both of decisions that history has judged to be valuable and correct and of bad decisions that reflect a curious lack of empathy that was common among the members of the educated classes of his time.

What is bad in his legacy comes from this bleaker, less kind and less empathetic side — a side, some biographers say, that was brought forth by his brutal suffering in the Civil War. “Three generations of imbeciles are enough,” he wrote in a 1927 opinion denying a mentally retarded woman’s plea not to be sterilized by the state of Virginia. Coming so late in Holmes’ life, this heartless dictum could not be dismissed as an aberration. In letters to friends he confided an interest in eugenics, which, if this may be counted in his defense, was of widespread interest among the educated classes in his time.

The good side of his legacy consists mostly of dissents that affirm the constitutionality of social legislation, and that affirm the principle of free speech. For example, his influential dissent in Lochner v. New York (1905) argued for the constitutionality of New York state laws regulating the hours and working conditions of workers in a bakery — which in themselves did not concern him. But it is with his great dissent in Abrams v. United States that this post is concerned.

Holmes’ Life and Views

Oliver Wendell Holmes, Jr. was born in Boston, Massachusetts in 1841 and died in Washington, D. C. in 1935. His life touched points in the entire history of his country — something that is no longer possible. As a child, he witnessed veterans of the Revolutionary War being honored in a parade down Tremont Street in Boston, and he remembered his grandmother telling how her family fled Boston when the British army came to occupy it. At the age of 92, he received a courtesy call from the newly inaugurated President Franklin D. Roosevelt, who in a few years would authorize development of the atomic bomb. (Holmes had this advice for the new president: “Form your battalions and fight!”)

His father, Dr. Oliver Wendell Holmes Sr., was a pioneering medical reformer. In this capacity, he is best remembered for discovering, in 1843, how puerperal fever — an often lethal infection affecting women who have just given birth — is passed from patient to patient by physicians and nurses who do not wash their hands or change their smocks between patients. Naturally, the article outraged doctors and nurses who were spreading the disease by not washing their hands or changing their smocks. Dr. Holmes was unmoved by their outrage. The importance of his discovery was quickly recognized, however, and honors followed; he was eventually made Dean of Harvard Medical School.

He was also a witty lecturer, the author of the popular book of essays, The Autocrat of the Breakfast Table, and a much-in-demand writer of occasional verse. His poem “The Deacon’s Masterpiece or, the One Hoss Shay” is a satirical commentary on the collapse of the Calvinist Church in America. I find another of his poems, “The Last Leaf”, to be quite touchng. Dr. Holmes was a genuine poet, although a minor one. His essays and verse were published in The Atlantic Monthly, a magazine which he co-founded and named.

The Holmeses were “Boston Brahmins”. In fact, it was Holmes Sr. who coined the term, to refer to members of families who had maintained a high level of intellectual distinction for at least several generations. Brahmins were scholars, poets, clergymen, college professors, doctors, judges, and philosophers; but never merchants, soldiers, artisans, laborers, or politicians.

Holmes Jr. was conscious of being a Brahmin through his descent from a long line of learned clergymen, originally Calvinist but turning to Unitarianism in recent generations. He would describe himself as a Unitarian whenever he needed to say what church he belonged to, but he had lost his belief in God early in life, never regained it, and did not attend the services of any church.

Holmes, Sr. was a friend of Ralph Waldo Emerson, who became an occasional guest at the Holmes household. Holmes Jr. revered Emerson, both for the wise things that he said, and for his ability to remain silent when he had nothing to say — an uncommon ability in the loquacious Holmes household. Holmes Jr. once gave Emerson an essay that he had written to criticize Plato’s theory of ideas. Emerson returned the essay to him with only the one comment, “When you strike at a king, you must kill him”. Holmes showed this comment to friends proudly, as an intellectual battle scar. Toward the end of Emerson’s life, Holmes mailed him a copy of an essay that he had written on primitive notions in modern law; along with the essay he enclosed the following note: “Accept this little piece as a slight mark of the gratitude and respect I feel for you who more than anyone else first started the philosophical ferment in my mind.”

Emerson may also have provided Holmes Jr. with validation for the scorn that he was beginning to feel for the masses of men. In his book The Conduct of Life (1860), Emerson wrote:

Leave this hypocritical prating about the masses.. I wish not to concede anything to them, but to tame, drill, divide, and break them up, and draw individuals out of them. The worst of charity is that the lives you are asked to preserve are not worth preserving. Masses! The calamity is the masses. I do not wish any mass at all, but honest men only, lovely, sweet, accomplished women only, and no shovel-handed, narrow-brained, gin-drinking million stockingers or lazzaroni at all.

Holmes would later refer to working men and women en masse as “thick-fingered clowns” But his reactions were never predictable. He had contempt for plebeians en masse, but when he went on his daily walks in Beverly Farms, Massachusetts, he always stopped to talk with the railroad crossing guard. During the Civil War, he grew to detest abolitionism, but once when he saw a concert of whites singing in blackface, he became so indignant at this disrespect for the members of black race that he walked out on the performance.

When he was growing up, his friends included Henry Adams, the future historian and the grandson and great-grandson of presidents; Henry James, the future fiction writer; and his brother William James, who would achieve distinction both as a psychologist and a philosopher. Holmes and William would sometimes sit up all night talking philosophy — or “twisting the tail of the Kosmos” as Holmes called it. They gradually became less close as the differences between their aims and temperaments became more obvious. William wrote to his brother Henry that “Holmes was formed like a planing machine to gouge a deep self-beneficial groove through life.” Holmes was aware that he was being judged.

Holmes attended Harvard where he became an abolitionist. After he was graduated he enlisted in the Twentieth Regiment of Massachusetts Volunteer Infantry. This so called “Harvard Regiment” would suffer the highest number of casualties of all Massachusetts regiments and would rank fifth in casualties of all Union regiments.

He was wounded three times in the course of his military service: at Balls Bluff, Fredericksburg, and Antietam. The wounds he received at Balls Bluff and Antietam almost killed him, as did a later bout of dysentery. He did not re-enlist when his original three year enlistment ended. Nearly all the Harvard men with whom he had enlisted were dead.

He sometimes talked about his experiences in the Civil War in a large philosophical manner, but although he observed the anniversaries of the major battles in which he had fought, he could not bear to revisit the war in detail. When someone gave him a copy of Lord Charnwood’s distinguished biography of Lincoln, he read it without pleasure. In old age, he decided to reread Thucydides’s History of the Peloponnesian War, one of the books that had most impressed him when he was a young man. He couldn’t bear to read it now, even when decades separated him from war.

Holmes enrolled in Harvard Law School in 1864 and upon graduation began to practice law in Boston. He quickly became well regarded as a lawyer and a long career of respectability and affluence opened up before him.

Still, he craved work in which he could achieve intellectual distinction. He found it when he was chosen to edit the twelfth edition of Kent’s Commentaries on American Law, a standard and influential reference work. He was beginning to make his mark.

In 1872 he married his childhood girlfriend Fanny Bowditch Dixwell. Shortly after their wedding she developed rheumatic fever and was graavely ill for weeks. She was reclusive for the rest of her life, and is remembered for her devotion to her husband and her sardonic wit; she once said “Washington is filled with great men and the women they married when they were young.”

At the same time, he was reflecting on the philosophical basis of law; the chief fruit of his reflection was his conclusion that natural law could not be referenced as a sanction of positive law. The principles by which men were ruled could no longer be read in the face of nature or be found engraved on the human heart. There were no unvarying eternal rules, no self-evident truths. In an article on natural law that he later published in the Harvard Law Review, he wrote:

It is not enough for the knight of romance that you agree that his lady is a very nice girl—if you do not admit that she is the best that God ever made or will make, you must fight. There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk. It seems to me that this demand is at the bottom of the philosopher’s effort to prove that truth is absolute and of the jurist’s search for criteria of universal validity which he collects under the head of natural law.

His rejection of natural law informed the most famous paragraph of his most famous book, The Common Law:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. 

By the age of 40, he had thus achieved greatness in legal scholarship, the first of the two fields to which he would devote his life. The second field became open to him in 1882, when he was appointed an associate justice of the Massachusetts Supreme Judicial Court. He would serve on this court for twenty years, the last two years as chief justice. He applied himself to his work as a judge with his usual assiduity, and in twenty years wrote over a thousand opinions for the court. But he found that his work on the Massachusetts court provided little opportunity for the original work that he longed to do.

It was, however, as a justice on the Massachusetts Supreme Judicial Court that he perfected a way to make judicial opinions and dissents something like works of art. His opinions and dissents were much shorter than those of other judges, and the language that he used in them was pithy, colloquial, and free of legal terms except where these were unavoidable. “I don’t believe in the long opinions which have been almost the rule here I think that to state the case shortly and the ground of decision as concisely and delicately as you can is the real way.” His style was said by some to be easy to read but hard to understand. It was the style that he would use for his great opinions and dissents on the United States Supreme Court.

It was also during his time on the Massachusetts Supreme Judicial Court that Holmes wrote an influential and controversial paper for the Harvard Law Review, The Path of the Law. (1897). In this paper, Holmes described the job of a lawyer as predicting, for the benefit of his client, the probable costs of breaking the law as well as of the benefits of obeying it. The client is free to weigh costs against benefits and make the choice that better furthers his aims. Holmes wrote:

You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.

This point of view has been vigorously, if not in my opinion, convincingly, debunked by Albert Alschuler in Law Without Value: The Life, Work, and Legacy of Justice Holmes. 2000.

Similarly for contracts, which merely specify promises that one is free to keep or not to keep, with the contract specifying the penalties for not keeping them. Holmes thus originated the practice of viewing the law as a “bad man” would view it — as a matter of benefits versus costs, with no accounting for morals or ethics. The bad man doctrine of legal analysis became both controversial and influential almost immediately.

Holmes stayed on the Massachusetts court until President Theodore Roosevelt appointed him to the United States Supreme Court in 1902. He was 62 years old when he was sworn as an associate justice. He would serve on the court with distinction for 30 years.

Shortly after his appointment to the Supreme Court, he wrote: “Since I have been here, the novelty solemnity and augustness of the work has made my past labors seem a closed volume locked up in a distant safe.”. The Holmes’s social life was transformed, too. He and his wife Fanny became frequent dinner guests of President Teddy Roosevelt at the White House.

It was clear to all that Roosevelt expected Holmes to support his trust-busting and other progressive legislation should it ever be challenged before the court. Holmes enjoyed his White House dinners but felt quite comfortable ruling against Roosevelt when the law as he saw it wasn’t on Roosevelt’s side. Roosevelt, however, was surprised and outraged by what he regarded as Holmes’s betrayals, not having realized that a Boston Brahmin cannot be bought, not even with White House dinners.

[It should be noted that it was Theodore Roosevelt, not Franklin Delano, whom Holmes, some think, described as “a first rate temperament and a second rate intellect”, although there is no evidence either that Holmes used anything like these words to express that thought.]

As a justice of the Supreme Court, Holmes could not, of course, seek out cases that raised interesting or profound questions of law. He did not, as it turned out, have any need. As a young man, Holmes had chosen the materials that enabled him to become a great legal scholar; now, in the final years of his life, he was being chosen by the issues that enabled him to become a great judge.

In the new century the demand for progressive reform was growing as the nation’s major corporations, chiefly based in coal, oil, and railroads, grew in wealth, political power, and influence over the lives of the country’s workers. These changes raised novel legal issues that necessarily landed before the Supreme Court. And in the years after 1917, when the United States entered World War One, the Supreme Court was called upon to define the government’s power to regulate the exercise of free speech.

As if these challenges were not enough to occupy Holmes’s mind, one of his fundamental legal tenets, his rejection of natural law, was attacked in the Illinois Law Journal as “heresy”. The legal scholar making this charge took issue with a judgement that Holmes had made some years before, that an individual cannot sue a state government for recovery of land. “ There can be no legal right as against the authority that makes the law on which the right depends,” Holmes had written.

Another strong conviction that Holmes formed while he was a judge was the wisdom of allowing the people considerable freedom to legislate solutions for their own needs and problems. This meant that judges should be restrained in their exercise of the power of judicial review — the power to invalidate laws or provisions of laws when the courts found them to be in conflict with the Constitution.

In Lochner v. New York (1905), Holmes dissented from the court’s majority opinion, which held that a New York statute regulating the hours and working conditions of bakery workers was an unconstitutional infringement of the bakery owner’s freedom to contract with his employees as he saw fit. It may surprise some to find Holmes dissenting in favor of the sweaty masses for whom he had expressed, on occasion, such Emersonian contempt. But Holmes’s regard for the law was stronger than his disdain for the masses of men or his doubts about the practical wisdom of legislation meant to make long hours among bakery ovens a little more tolerable for the bakers. “If my fellow citizens want to go to Hell, I will help them. It’s my job”, he said. His disinterested respect for the law is one important aspect of his greatness as a judge.

His detachment was further shown in his dissent from the Court’s majority opinion in U. S. Schwimmer, 1928. Rosika Schwimmer, a Hungarian Jew, had applied for U. S. citizenship and been turned down because, as an avowed pacifist, she had said that she would not bear arms in defense of the United States. The fact that as a 50 year old woman she could not bear arms in any case was considered immaterial by the lower courts.

Holmes scorned pacifism but believed that the issue involved in this case was not the soundness of pacifism as a philosophy, but the principle of free speech:

 Some of her answers [to questions that she had had to answer about her beliefs in her application for citizenship] might excite popular prejudice, but, if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us, but freedom for the thought that we hate. I think that we should adhere to that principle with regard to admission into, as well as to life within, this country. And recurring to the opinion that bars this applicant’s way, I would suggest that the Quakers have done their share to make the country what it is, that many citizens agree with the applicant’s belief, and that I had not supposed hitherto that we regretted our inability to expel them because they believed more than some of us do in the teachings of the Sermon on the Mount

This was the last dissent that Holmes would write in a free speech case.

Holmes As a Person

He was as remarkable as a man as he was as a legal scholar. According to Dean Acheson, at that time Judge Brandeis’s legal secretary, Holmes was “possessed of a grandeur and beauty rarely met among men. His presence entered a room with him as of a pervading force.” He stood six feet two inches tall, with a soldier’s posture and a theatrically oversized moustache. One acquaintance, however, said that the dominant feature of his face was not the moustache but his “gently menacing” blue grey eyes. He was affable, witty, and and a conversationalist without a peer in his time. He had many brilliant friends, among them Judge Learned Hand, Harold Laski, Walter Lippmann, Frederick Pollock, and Felix Frankfurter. The friends who worked in Washington found Holmes’s townhouse to be a welcome retreat from the atmosphere of “cigar smoke suspended in steam heat” (Lippmann’s words) in which the work of the great city was done; Holmes’s book-lined study was the scene of many exhilarating discussions of matters mundane and metaphysical. To be a party to these discussions was a cherished privilege in Washington in Holmes’s day.

Holmes was vastly well read in law, philosophy, and literature. He knew a great deal about art, collected prints, and enjoyed going to art museums. His judgement of books was independent, as befitted an admirer of Emerson; he didn’t hesitate to say, for example, that he thought Othello “a rotten and repulsive” play. He never read newspapers.

He retired from the court at the age of 90, after acknowledging, reluctantly, that he had become physically incapable of doing his job. Age brought him little mental impairment, however, and he now systematically read through what he called his “Judgement Day books” — the books that he would be ashamed never to have read when the final bugle blows. These books included, among others, Spengler’s Decline of the West, Martin Chuzzlewit, Vanity Fair, the stories of P. G. Wodehouse (“He makes me roar.”), Willa Cather’s My Antonia (“really great”), and Proust in French. He read selections from Emerson. (“The only firebrand of my youth that burns to me as brightly as ever.”).

He outlived his wife by several years. When he died, it was found that he had left most of the value of his estate to the Treasury of the United States, the nation whose existence he had fought to preserve as a soldier, and whose laws he had helped reduce to system and clarity first as a scholar and then for fifty years as a judge. He was mourned by a nation that sensed that he had embodied faithfulness to one’s task and one’s country.

The Path to Abrams

In this section I will try to describe the historical background of Abrams v. United States and to account for Holmes’s famous “change of mind” about the protections owed to speech — a change that took place over a period of almost two years, culminating in his great dissent in Abrams vs the United States.

I rely heavily on Thomas Healy’s excellent book, The Great Dissent: How Oliver Wendell Holmes Chznged his Mind — and Changed the History of Free Speech in America.

Holmes once wrote in a letter to William James that he preferred to keep developments in his thinking to himself. His dissent in Abrams certainly surprised and dismayed the colleagues on the court who were most in sympathy with his views, while it delighted his progressive friends who had long been frustrated by Holmes’s refusal to give speech greater protection.

Before Holmes’ time, the federal courts had seldom been called upon to declare what protections were owed to speech under the First Amendment. The infamous Alien and Sedition Acts (1798), by which the Federalist party hoped to silence its critics, was allowed to expire by Jefferson when he became President in 1801; and Jefferson pardoned those who had been convicted under the acts. This attempt to squelch free speech inspired no efforts to establish protections for speech, however.

Until Holmes wrote his dissent in the Abrams case, the principal protection enjoyed by freedom of speech was derived from Sir William Blackstone’s Commentaries on the Laws of England (1765 – 1769):

The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity. (4 Bl. Com. 151, 152.)

In other words, the government cannot prevent a citizen from speaking, but it can hold him liable for what he says. The drafters of our Constitution appear to have accepted Blackstone’s doctrine without discussion. There is no evidence that Holmes felt that speech needed greater protection than protection from what came to be called prior restraint. The First Amendment had seldom been appealed to in cases involving freedom of speech.

Adding to the element of surprise surrounding the Abrams dissent, perhaps, is the fact that the Supreme Court had reviewed only a handful of cases dealing with the protections owed to speech. The data on which to base speculation about the movements of Holmes’s mind are not plentiful. By reviewing some of the cases that do deal with the protections owed to speech, I hope at any rate to glimpse the movement of his thought.

However, events soon pressured the Court to consider the question of free speech. The country’s entrance into the Great War created a powerful public demand that Congress take action against spies and saboteurs, even though there was little evidence that the country was seriously threateed by either. The Espionage Act of 1917 and the Sedition Act of 1918 were Congress’s response to the demand. Together, the acts put a chill on freedom of speech by specifying jail terms of up to 20 years for actions tending to hamper or impede the war effort — all such actions being forms of speech. The language of the Espionage Act and the Sedition Act was vague; deliberately so, some thought, so as to give the government wider scope for prosecution.

Holmes’ supporters were aghast at these acts, and it did not reassure them that the acts would expire when the war ended. A precedent had been established. The government could, when it deemed it necessary, do exactly the thing that the First Amendment said that it could not do: set limits to freedom of speech. In desperation, Holmes’s supporters looked to him to take a stand for First Amendment rights.

Instead, he shocked his supporters by siding with the court in upholding the Constitutionality of the Espionage and Sedition Acts in three separate challenges; Schenck v. the United States, Frohwerke v. the United States, and Debs v. the United States. In each case, the Court upheld the convictions of the defendants, each of whom had spoken out against the government’s war efforts. Worse, in each case Holmes was chosen to write the majority opinion for the Court! “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent,” he wrote. Holmes’s powers of reasoning, his profound legal learning, his marvelous gift of expression all would be enlisted in the government’s bid to weaken First Amendment protections.

A Chance Encounter

At the start of the summer recess for the federal bench in 1917, Judge Learned Hand by chance encountered Holmes on the train that both were taking from Washington D. C. to New England. Hand was grateful for this opportunity to speak to Holmes.

Sitting as a federal district judge in the case Masses Publishing Company v. Patten, Hand had just ruled that criticism of the U. S government’s war effort that appeared in a magazine published by the Masses Publishing Company did not violate the terms of the Espionage Act of 1917. Hand had ruled that speech did not violate the act as long as it “stops short of urging upon others that it is their duty or in their interest to resist the law,” and that the criticisms in the magazine had so stopped short. Hand’s ruling was overturned on appeal and the Masses Publishing Company was blocked from distributing its magazine through the U. S. Post Office as stipulated by the act. Since the company relied on subscriptions by mail for almost all its revenue, it had gone out of business shortly after Hand’s ruling had been overturned. Hand said to Holmes that something of value had been lost; the magazine was of real distinction. Hand made clear to Holmes his belief that freedom of speech was becoming dangerously restricted and that something needed to be done to correct this state of affairs.

Holmes listened to Hand courteously, but committed himself to nothing. It is hard not to believe that Holmes was influenced by Hand’s passionate advocacy. He admired Hand for the brilliant jurist that he was, and the two judges were in agreement on most points of law. But Hand had come up against something austere and immovable in Holmes’ nature, and was obliged to wait and hope.

Abrams v. the United States

Holmes soon had an opportunity to revise his stand on freedom of speech — its nature, its importance, and the protections owed to it on account of its nature and importance. His revision would make one of the great documents in the history of the doctrine of freedom of speech.

In 1918, a group of Russian immigrants in New York City, led by a man named Jacob Abrams, printed hundreds of copies of two pamphlets denouncing the invasion of Russia by the United States and other allied powers. The allies had invaded Russia after the Russian revolution had overthrown the Tsar. The original purpose of the invasion was to prevent a large cache of munitions from falling into the hands of the German Empire. After the armistice, the invaders remained in Russia to support the Whites in the Russian civil war.

Abrams and his fellow immigrants had distributed the pamphlets by throwing them out the window of a loft in the garment district. The immigrants were found guilty of violating the Espionage Act and sentenced to twenty years in prison. In Abrams v. the United States they asked the Supreme Court to overturn their convictions.

The Supreme Court upheld their convictions, with the majority opinion being written by Justice John C. Clarke, who wrote in part:

… while the immediate occasion for this particular outbreak of lawlessness on the part of the defendant alien anarchists may have been resentment caused by our Government’s sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing, and, if possible, defeating the military plans of the Government in Europe.

Justices Holmes and Brandeis voted to overturn the convictions. Holmes’ dissent was concise and rigorously reasoned — a good example of the style which one critic had criticized as easy to read and hard to understand.

The case turned on the question of “intent”: had the defendants distributed the pamphlets with the intention of hampering the U. S. war effort? The Court had held that men can be assumed to intend the usual consequences of their actions, and that the usual consequences of actions such as the defendants’ would present a clear and present danger that the government has a duty to prevent.

Holmes argued that whatever the intentions of the defendants, their actions did not in fact present immediate dangers that the government had a duty to prevent:

Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.

If, as Holmes believed, the court was not really punishing the defendants for their actions — which were innocuous — but for their creed, the issue before the court was nothing less than the rights of speech itself, and thus, of the right to think one’s thoughts:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when 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 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. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that 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 purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion.

Here at last was a justification of freedom of speech that did not rely on authority –not even on so venerable an authority as the First Amendment –but referred to the real needs of men – that there be an agreed upon working version of the truth which can alone serve as the basis of policy or other common undertakings.

Holmes concluded his dissent with the words “I regret that I cannot put into more impressive words my belief that, in their conviction upon this indictment, the defendants were deprived of their rights under the Constitution of the United States.” My own belief is that the paper on which Holmes wrote this dissent should be prominently displayed in the U. S. Capitol in a glass case filled with inert gases.

The Marketplace of Ideas — Can It Rescue Freedom of Speech?

Holmes’ justification of freedom of speech supposes a degree of civic virtue that is not likely to be found in many communities. It requires people to be well informed, rational, and motivated by a disinterested concern for the common good. We do not see many such communities today — certainly our nation as a whole is not such a community.

The public today is not well informed, but variously informed. In his book Public Opinion (1922), Walter Lippmann wrote that each person carries in this head a unique picture of the world, even though all people are children of the same objective world. Because they carry different pictures of the world in their heads, they are bound to judge ideas differently. For example, one man says that the dam on the slope above the town is weak and needs to be drained and repaired immediately. Another man says, let’s wait and see. A third says that the whole idea is silly. Each man’s idea is reasonable, given the picture of the world that he carries in his head. And people are loathe to alter or give up the picture of the world that they carry in their heads. They find it hard to conceive that there might be any difference between their pictures and the objective world.

And there are people who, to enrich themselves, hope to confirm other people in their attachment to their pictures of the world. The owner of a dredging company wants to confirm people in their belief that the dam is in need of immediate repair. The owner of a seismic survey company wants people to believe that the dam could be damaged by an Earth tremor. The developer who wants to build a dozen houses in the meadow below the dam want people to regard the dam as sound.

People are not hopelessly irredeemably bound to their pictures of the world. People change their minds. But to judge among pictures of the world in order to decide which best corresponds to observable facts requires a power of rational judgement. It is an instinct of rationality that prompts a person who thinks the dam sound to go to the dam himself to verify his idea.

And then, the competition of ideas in the marketplace will sometimes require people to endorse ideas that benefit others more than themselves. It will require, in other words, that people have a disinterested concern for the welfare of their community.

And then there are the qualities of the ideas that are brought to marketplace, and the criteria for judging among them. In a corrupt community, only corrupt ideas will be brought to the marketplace, and the criteria for choosing the best (or rather, the worst) among them will be corrupt.

It would appear then that Holmes’ justification of freedom of speech is operative only in a community of saints of which there are none.

Even so, unattainable ideals have their value, even in this fallen Earth. They can instill in us a bias toward truthfulness, justice, and mercy. And even if we have not attained civic sainthood, we still may find it within our power “to be eternally vigilant against attempts to check the expression of opinions that we loathe.”