Holmes and Free Speech

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In the conventional mythology, Justice oliver wendell holmes, jr. , is the judicial architect of the tradition of freedom of speech in American constitutional law. According to that mythology, Holmes's formulation of the clear and present danger test for evaluating subversive speech in schenck v. united states (1919), coupled with his stirring dissent in abrams v. united states that same year, in which he claimed that "the theory of the Constitution" was that "the ultimate good desired is better reached by free trade in ideas," reoriented American thinking about the significance of the first amendment in American culture. By the time Holmes retired from the Supreme Court in 1932, the conventional account runs, a new generation of judges and legal commentators was ready to carry the libertarian torch that he had first lit.

As in all cases where a conventional mythology has endured, there are elements of accuracy in the standard account. The First Amendment was not generally taken to be a significant limitation on legislative restrictions of expression prior to world war i. Holmes, together with Justice louis d. brandeis and several academic commentators, notably zechariah chafee, jr. , did carve out, and maintain, a more speech-protective position on freedom of expression issues than most judges of his time, including the majority of his colleagues on the Court. Holmes's capacity to write memorable, arresting paragraphs in his free speech opinions helped communicate, to many different American audiences, the political and philosophical justifications for protecting speech in a constitutional democracy. Finally, there is no doubt that by the time Holmes left the Court in 1932 his own free speech jurisprudence had evolved from a quite conventional posture that assumed a quite limited role for the First Amendment as a shield for unpopular expression, and no role at all for the due process clause of the fourteenth amendment in that capacity, to a posture that can fairly be described as seeing a free speech issue lurking behind a great many legal bushes.

To understand the kernels of truth in the conventional mythology, however, is not to convert it to wisdom. The conventional account bristles with difficulties. The first difficulty is one of causal attribution. In Patterson v. Colorado, a 1907 case, Holmes wrote an opinion for the Court denying a free speech claim and intimating that the First or Fourteenth Amendment "liberties" of speech might be confined to protection against governmental " prior restraints " on expression. Similarly, in the 1915 case of Fox v. Washington, Holmes's opinion for the Court intimated that the "liberty" in the Fourteenth Amendment needed to be read narrowly and might not include protection of speech at all. In both cases criminal convictions of the speakers—one under a statute proscribing criticism of public officials and the other under a statute proscribing utterances that tended to cause breaches of the peace—were upheld under the conventional test: whether a particular expression had a "tendency" to encourage action that the state clearly had a right to prohibit.

Holmes's "clear and present" danger opinions in Schenck and Abrams appeared to be departures from the bad tendency test. But the former opinion was ambiguous in that respect. Although Holmes said in Schenck that "the question in every case" was whether a "clear and present danger" to the state followed from the expression being restricted, the speech of the defendants in Schenck—issuing circulars encouraging conscriptees in World War I to resist the draft—had a "bad tendency" but did not necessarily pose a clear and present danger. Yet Holmes's opinion for the Court in Schenck upheld the conviction.

Holmes's opinion in Abrams, in contrast, would have overturned the convictions of persons who dropped leaflets calling for a general strike in the vicinity of factory workers employed in the munitions trade. Since World War I was still going on when the leaflets were distributed, the defendants—Russian immigrants sympathetic to the Bolshevik regime—were prosecuted under the 1918 sedition act for interfering with the war effort, and a general strike clearly would have impeded that effort. Holmes's dissent in Abrams was a clear departure from his position in Schenck, notwithstanding his rhetorical efforts to make the opinions appear consistent. He had changed his mind about speech issues and begun to adopt a more expansive reading of the protective scope of the First Amendment. Subsequently Holmes and some of his academic admirers, especially Chafee, felix frankfurter, and harold j. laski, would treat the Schenck–Abrams sequence as all of a piece and identify Holmes as the modern founder of a robust free speech jurisprudence. The truth was more complicated.

As World War I drew to a close Holmes began a series of discussions with a group of younger legal intellectuals, including Chafee, Frankfurter, Laski, and Judge learned hand, about the importance of freedom of expression as a means by which citizens in a democratic society could reach "the truth" about public issues and thereby become more informed participants in government. Being an elitist, and being skeptical about the philosophical integrity of universal principles, Holmes doubted whether majoritarian sentiment could be equated with wisdom, but at the same time recognized that majoritarianism was a bedrock principle of democracy. Although some of his younger colleagues believed that freedom of expression was part of a more general liberalization and democratization of American life, Holmes tended to believe that if most "subversive" talk was permitted to be uttered, its intellectual worthlessness would soon be apparent. Although Holmes talked about the First Amendment as protecting "free trade in ideas," he believed that the marketplace of ideas would result in only those expressions that had some significant intellectual weight surviving. He was contemptuous of the substantive value of most of the "radical" expressions his free speech opinions came to protect, but he was not contemptuous of the value of freedom of expression in a modern democracy. The latter insight he had gleaned from his younger colleagues. Thus the first set of Holmes's contributions to free speech jurisprudence, the Schenck–Abrams sequence—which also included two other opinions, frohwerk v. united states (1919) and debsv. united states (1919) in which Holmes upheld convictions for "seditious speech," ignoring his own clear and present danger language—cannot accurately be described as the work of a pioneer. It was the work of a gifted intellectual absorbing the contributions of others and making them part of his consciousness.

The second difficulty with the conventional account is that it fails to advance an adequate characterization of the remainder of Holmes's free speech opinions in the years following Abrams. A close reading of those opinions, which included two more memorable dissents, in gitlow v. new york (1925) and united states v. schwimmer (1929), reveals nothing like jurisprudential consistency. In a series of cases in the 1920s involving state efforts to restrict the teaching of foreign languages in public schools, Holmes dissented from Court opinions striking down those statutes as invasion of the Fourteenth Amendment "liberties" of teachers or scholars. In Gitlow, where a majority of the Court summarily extended the application of the First Amendment to the states through " incorporation " of that provision in the due process clause of the Fourteenth Amendment, Holmes's dissent accepted that result only grudgingly. Yet in Gitlow Holmes dissented from an opinion upholding the conviction of a writer of an anarchist manifesto even though the legislature had determined in advance that calls for the overthrow of the capitalist system constituted a clear and present danger to the existence of the state.

Similarly in Schwimmer Holmes converted a deportation proceeding, in which the Immigration and Naturalization Service (INS) determined that those aliens unprepared to defend the United States in time of war should no longer be entitled to remain in the country, into a free speech case. Traditionally aliens had not been treated as having the same constitutional rights as those with citizenship, and were eligible for deportation at the pleasure of the INS. Rosika Schwimmer, a pacifist who was ineligible for military service on age and gender grounds, declined to affirm that she would defend the United States, and the INS's effort to deport her, although doubtless punitive, was not a violation of any constitutional right. Holmes turned the case into an essay on "freedom for the thought we hate," but his comments had no legal significance for the case before the Court. Schwimmer could have been deported simply for failing to affirm allegiance, whatever her reason. Holmes took the occasion to juxtapose his contempt for the ideology of pacifism against his belief that pacifists should be allowed to speak freely, but Schwimmer was an alien pacifist.

Holmes's last decade of free speech opinions thus reduced itself to a series of vivid rhetorical expressions and a somewhat inconsistent voting record. But the very eloquence of those expressions, his great stature as a judge, and the enticing image of a nineteenth-century Brahmin voicing support for the "poor and puny" communications issued by marginalized dissidents has been too much for a long line of commentators, themselves enthusiastic about free speech, to resist. Consequently Holmes's judicial career will invariably be associated with the libertarian progression of twentieth-century free speech jurisprudence in America. One hopes the association will be seen as more nuanced than the conventional mythology suggests.

G. Edward White


Gunther, Gerald 1975 Learned Hand and the Origin of Modern First Amendment Doctrine. Stanford Law Review 27:719–773.

Lewis, Anthony 1991 Make No Law: The Sullivan Case and the First Amendment. New York: Random House.

White, G. Edward 1993 Justice Oliver Wendell Holmes: Law and the Inner Self. New York: Oxford University Press.

——1996 The First Amendment Comes of Age. Michigan Law Review 95:299–392.

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