For all the horrors that marked 1919 in America — the race riots, the terrorist attacks, the labor unrest — there was one unquestionably positive development. On Nov. 10, a hundred years ago Sunday, Supreme Court Justice Oliver Wendell Holmes issued a remarkable opinion that gave birth to our modern understanding of free speech.
It was a complicated delivery. Despite its centrality to our culture today, the First Amendment in the early 20th century was largely a dead letter. The Supreme Court had never upheld a free speech claim, and lower courts had approved the censorship of books and films, the prohibition of street-corner speeches and bans on labor protests and profanity. Even criticism of the government could be punished, the courts had ruled, if it threatened public order and morality.
The low point was World War I. Two months after declaring war, Congress passed the Espionage Act, which made it a crime to obstruct the draft or cause insubordination in the military. A year later, it passed the Sedition Act, outlawing any speech that the authorities deemed “disloyal” or “scurrilous,” as well as any speech intended to encourage resistance to the war, curtail the production of arms or obstruct the sale of war bonds.
Federal prosecutors vigorously enforced these acts, bringing nearly 2,000 indictments, many on the thinnest of pretexts. One person was convicted for forwarding a chain letter that called for an immediate end to the war. Another was jailed for asserting that the war benefited capitalists. And the courts largely acquiesced, ruling that the First Amendment offered no protection for speech with a “bad tendency” — essentially, any speech the government disliked.
The suppression continued after the war, as the fear of German sympathizers was transformed into a fear of Bolshevists. Congress allocated half a million dollars to investigate seditious activities. In the fall of 1919, Attorney General A. Mitchell Palmer ordered a series of raids on the homes and workplaces of Russian immigrants. And a Senate committee released a list of 62 “radicals” who were said to be enemies of the state, including such respected figures as the social reformer Jane Addams, the historian Charles Beard and Frederic Howe, the commissioner of immigration at Ellis Island.
It was in the midst of this hysteria that Holmes breathed new life into the First Amendment. He was an unlikely midwife. Holmes, 78 at the time, was descended from one of the oldest families in America. He was a graduate of Harvard Law School, a veteran of the Civil War and a member of the intellectual aristocracy that his father, a famous author, had labeled the “Brahmin caste of New England.” More to the point, he had done as much as any judge to render free speech meaningless.
As a state court judge in Massachusetts, he had ruled that there is no right to speak on public property or while working as a public employee. And after joining the United States Supreme Court, in 1902, he had embraced the cramped English view that free speech protects only against prior censorship but places no limits on the government’s power to punish speakers after the fact.
These rulings reflected Holmes’s long-held belief that free speech was “logically indefensible” — that just as government should be permitted to punish actions that cause harm, so it should be permitted to punish words that cause harm. But his indifference to free speech also stemmed from a deeper commitment to majority rule and judicial restraint. Holmes believed that the majority, acting through its elected representatives, should be allowed to pursue whatever policies it wanted. And he, as an unelected judge, had no business standing in the way. “If my fellow citizens want to go to hell, I will help them,” he liked to say. “It’s my job.”
But the events of 1919 changed Holmes. A contrarian with a love of books and a fondness for debate, he was troubled by the wave of persecution that swept the country once the dangers of war had passed. He was especially troubled when that wave threatened to engulf two of his own friends, a legal scholar named Felix Frankfurter and a British political theorist named Harold Laski.
Frankfurter and Laski would later achieve their own fame: Frankfurter was appointed to the Supreme Court in 1939, and Laski was elected chairman of England’s Labour Party at the end of World War II. But in 1919, they were young academics (Frankfurter was 37, Laski 26) still making names for themselves. They were also part of a circle of younger intellectuals who worshiped Holmes for his willingness to uphold progressive labor legislation despite his own doubts about the wisdom of such laws. This circle, which included two of the founding editors of The New Republic, Herbert Croly and Walter Lippmann, published tributes to Holmes, feted him with parties and dinners, and passed around his opinions like sacred texts.
Holmes was buoyed by the admiration of these acolytes, believing he was finally receiving the recognition he had long desired as nothing less than the “greatest jurist in the world.” He also developed a genuine affection for the “young lads,” as he called them, treating Frankfurter and Laski like the sons he never had.
So when the two men came under attack for their “radical” views — Frankfurter for his support of labor unions, Laski for his socialist leanings — Holmes sprang to their defense. He wrote to the president of Harvard, where both men taught, and sought help from the Harvard Law School alumni association.
He also began to rethink his stance on the First Amendment, an endeavor his young friends encouraged. For more than a year, they waged an intense behind-the-scenes campaign to strengthen Holmes’s appreciation for free speech. They fed him books on political liberalism, wrote him long letters on the value of tolerance and engaged him in impassioned debates. At one point, Laski even arranged a meeting at his summer bungalow between Holmes and Zechariah Chafee, a Harvard law professor who had written an article criticizing the justice’s views. “You won’t forget that you are coming down on Saturday for the week-end,” Laski wrote Chafee. “Holmes is coming to tea, and I want you to arrive in good time. For I have given him your article and we must fight on it.”
Holmes did not change his mind all at once. In March 1919, he wrote three opinions for the court upholding the convictions of socialists for criticizing the war. These opinions hinted at an internal struggle. Holmes retreated from his earlier belief that free speech protects only against prior restraints. And he rejected the “bad tendency” test, writing that speech can be punished only if it poses a “clear and present danger.” But he failed to explain how the defendants’ speech met that test, falling back instead on his commitment to majority rule and judicial restraint.
Eight months later, when the court heard another case under the Espionage and Sedition acts, Holmes’s conversion was complete. By this point, Laski was in serious trouble, having spoken out in support of a labor strike by Boston police officers. The strike was a disaster; with no officers on duty, the city descended into chaos, and the soldiers who were brought in to restore order killed eight people. Laski’s support for the strike thus won him the enmity of the entire New England establishment. The press denounced him as an “boudoir Bolshevist,” while the Harvard Board of Overseers opened an investigation to determine whether he was fit to teach.
It was against this backdrop that Holmes wrote his famous defense of free speech. A majority of the court voted to uphold the latest convictions under the Espionage and Sedition acts. But Holmes, joined by his close friend Justice Louis Brandeis, dissented. Acknowledging the appeal of persecution, which he had once himself embraced, he now offered a powerful rebuttal:
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.
With those words, Holmes provided a justification for free speech that fit with his conception of democracy. We should protect speech not to promote the liberty of the individual over the interests of the majority. We should protect speech because doing so promotes the collective interest — in other words, the interests of us all.
Holmes’s young friends were elated. Viewing his opinion not just as a defense of free speech but also as a defense of them, they wrote one by one to express their gratitude and to predict that his dissent would one day prevail.
They were right. Although Holmes was in the minority, the power of his words and the force of his personality gave his opinion an authority beyond the usual judicial dissent. Civil libertarians soon embraced it as an article of faith, and ultimately the rest of the country did, too.
That didn’t happen overnight — the second Red Scare and McCarthyism were still to come. And Holmes was not the only person responsible for the development; Brandeis wrote several eloquent opinions defending free speech, and the contributions of lawyers and scholars such as Chafee were invaluable. But it was the figure of Holmes, the old soldier and enlightened aristocrat, who gave the movement its legitimacy and inspiration. And by the late 1960s, his tribute to “free trade in ideas,” along with his insistence that speech can be punished only if it poses a “clear and present danger,” had become not only cultural catchphrases but the law of the land.
Holmes’s dissent did not answer all the questions about free speech. His market metaphor has sparked intense disagreement about the extent to which laissez-faire economic principles should guide First Amendment law. The public reaction to the Supreme Court’s decision in Citizens United, which struck down a ban on corporate campaign spending, is the most prominent example of that dispute.
Holmes himself would have been distressed to see his metaphor taken literally. In another famous dissent, he explained that “general propositions do not decide concrete cases,” by which he meant that the law is not a game of logic in which judges reason abstractly from some “articulate major premise.” Decisions, he believed, depend on “more subtle” intuitions and judgments that are informed by experience.
But whatever one thinks of the market metaphor, Holmes’s conversion offers a valuable lesson in our own time of discord. It illustrates the power of free and fearless debate to change the course of history — and the importance of a judiciary willing to protect our most fundamental rights.
