With this summer’s Justice Department hunt for leakers, the trial and conviction of WikiLeaks leaker , and the catch-me-if-you-can saga of NSA leaker Edward Snowden, “The Great Dissent,” by Thomas Healy, arrives just when its insight is needed. To borrow language from the book’s subject, Supreme Court Justice Oliver Wendell Holmes Jr., it might even be a case of proximity and immediacy.
The book examines the jurisprudence of Holmes, a legal and intellectual giant who in 1919 began to reshape the law on free speech and First Amendment values in what Healy considers the most important dissenting opinion in American law — “twelve paragraphs that would change the history of free speech.” Healy continues, “Indeed, it is no exaggeration to say that Holmes’s dissent . . . 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.”
A Harvard law professor from a prominent Boston family with roots going back to the nation’s founding, Holmes intially came to free-speech issues with a fair amount of hostility toward the speakers whom the government was prosecuting. After all, they were communists, socialists, anarchists and, especially during World War I and its aftermath, German and Russian sympathizers — all of whom establishment types such as Holmes believed were intent on inciting insurrection and destabilizing the government with their speeches and leaflets. During the war, Congress passed the Espionage Act of 1917 to protect the country from dissidents, spies and enemies of the state who could disrupt military operations or endanger the government at a time of war. The indictments, nearly 2,000, rolled in. So did the prosecutions, convictions and appeals.
In this period, the Supreme Court wrestled with several cases on this topic, and the outcomes were all the same: convictions upheld. The book centers on two cases, both from 1919. In Schenck v. United States, Holmes wrote the majority opinion for the court, upholding the convictions of a handful of socialists who had created and distributed a leaflet criticizing the draft. This leaflet, during wartime, Holmes wrote, created a “clear and present danger” of substantive evil — that is, disruption of military operations or destabilization of the government; thus, the government’s restrictions on speech and the defendants’ convictions were justified. Less than a year later, however, Holmes dissented in the almost identical case of Abrams v. United States, arguing that the free-speech rights of these dissidents outweighed the vague potential for their words to cause harm. Holmes famously wrote:
“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.”
What led Holmes to make such an about-face and deviate from the standard of law he himself had just applied becomes the focus of the book.
Healy, a professor at Seton Hall Law School, has made ample use of Holmes’s extensive correspondence with other intellectual and legal luminaries of his day to try to figure out how the justice’s outlook changed so markedly in less than a year. The answer has to do with Holmes’s wide reading and his encounters with the likes of Learned Hand, an influential federal judge; fellow Supreme Court Justice Louis Brandeis, who was to join in Holmes’s Abrams dissent; future justice Felix Frankfurter; Harold Laski, a British political theorist; and Zechariah Chafee, a Harvard law professor and pioneer in free-speech advocacy.
It’s impossible to know for sure, but Healy seems right in thinking that these men influenced Holmes and inspired his personal transformation, which Healy believes led to a transformation of First Amendment law. That second transformation, however, took decades to arrive. Holmes (and Brandeis) remained in the minority, dissenting in free-speech cases in the years after Schenck and Abrams. The court vacillated on these issues until a 1969 case, Brandenburg v. Ohio, which involved the leader of the Ohio branch of the Ku Klux Klan. In overturning the defendant’s conviction, the court finally adoped Holmes’s standard that speech can’t be punished unless it is likely to produce “imminent violent action.”
The tentacles of Holmes’s views on free speech have touched just about every First Amendment decision in the past 90 years, on everything from government censorship to obscenity to reporters’ confidentiality to violent video games and the Citizens United campaign finance law case.
As courts confront new challenges to the law, particularly for free speech and the free flow of information, they will continue to look to Holmes for guidance. And Holmes is still providing an applicable rationale for relying on the marketplace of ideas.
THE GREAT DISSENT
How Oliver Wendell Holmes Changed His Mind — and Changed the History of Free Speech in America
By Thomas Healy
Metropolitan. 322 pp. $28