By Mike Dorf
A wonderful new book by Seton Hall law professor (and my former student) Thomas Healy tells the story of how and why Justice Oliver Wendell Holmes, Jr. came to change his mind in free speech cases. As students of the First Amendment know, in less than a year's time, Holmes went from authoring Debs v. United States, which dismissed a First Amendment challenge to an espionage conviction for ordinary political speech by socialist Eugene Debs, to penning the stirring dissent in Abrams v. United States. Together with Justice Louis Brandeis's concurrence in Whitney v. California, the Abrams dissent sets out the philosophical foundation of modern free speech doctrine.
As Healy documents in The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America (available for pre-order here), it was hardly inevitable that Holmes would end up championing a right to free speech. One need not agree fully with Al Alschuler's view of Holmes as a nihilist to recognize that the pre-Abrams Holmes gave every indication of permitting the prosecution of people espousing what the authorities (and Holmes himself) regarded as subversive ideas. And yet change his mind Holmes did. In a carefully researched and beautifully written book, Healy explains why. The book is well worth reading simply as a fascinating tale.
But what about the claim that Healy makes in the second half of the subtitle of his book. How much of a causal factor was Holmes's change of heart? Would the U.S. have gotten more or less to where it is now with respect to free speech, even if Holmes had stuck to the view he endorsed in Debs? Would it have taken us a lot longer?
In a strict sense, the question is unanswerable. History is path-dependent and so we can never know for sure how differently things might have unfolded if a prehistoric butterfly had flapped its wings in a different spot. Still, as I noted in a post earlier this year, we can say something about the relative influences of various factors and likely counter-histories that would have unfolded absent those influences.
So, how pivotal a figure was Holmes? Discussions of this sort tend to draw one of two dichotomies: (1) Some people argue about the relative influence of individuals and larger forces; and (2) other people argue about the relative influence of material forces and ideas. My view, for what it is worth, is that, with an important caveat to which I'll return below, the pro-free-speech ideas Holmes came to espouse would have eventually prevailed even had Holmes never come to espouse them. Thus, at least on this version of the competition described by the first dichotomy, I take the "larger forces" view. But I regard the power of ideas themselves as one of the larger forces in play, and so with respect to the second dichotomy, I disagree with materialists who discount the power of ideas. Let me elaborate.
What is the evidence that free speech principles would have eventually triumphed even absent Holmes's support? I would point chiefly to two sets of circumstances.
First, Holmes was not the first person to articulate what has become our modern conception of free speech. One can find much older roots in sources like John Milton's Aeropagitica (elegantly defended by Vince Blasi here). And while both Milton and the framers of the First Amendment can be understood as having only meant to protect speech against prior restraint rather than after-the-fact sanctions, the logic of Milton's argument applies equally to the latter. And Holmes was not the first or only person to notice that. As Healy recounts, early 20th Century champions of free speech--especially Zechariah Chafee--were key intellectual influences on Holmes (and on Brandeis). Had Holmes not endorsed the views of Chafee, those views would nonetheless have been part of the public discussion.
Second, Holmes was in dissent when supporting free speech. His views on free speech did not really triumph until the 1960s, only after the passing of the first and second red scares. The Court came to embrace principles Holmes had espoused for its own purposes--including, especially, the connection in the 1960s between civil rights and free speech. And even then, as Justice William O. Douglas explained in his concurrence in Brandenburg v. Ohio, modern case law can be seen as more protective of free speech than Holmes ever was, in part because Holmes never fully explained that his later views regarding speech were a repudiation, rather than an application, of his earlier views.
But this is hardly to say that Holmes's ideas themselves were unimportant. Marxians and neo-Marxians (like Jared Diamond) make an important point when they describe the history of human societies as governed by large-scale material factors (like the stage of economic development for Marx or the availability of natural resources and natural threats for neo-Marxians like Diamond). But ideas also matter. The encounter of Marxism with the real world is itself a nice example of what's wrong with Marxian materialism. As a program of action, a means of organizing society, the dictatorship of the proletariat proved disastrous, but it took decades of genocide and general misery for people to learn that lesson. Why? Partly because the rulers of the societies in question maintained their perks but that's only a partial explanation. Many people simply believed in the Marxist ideas. Even today, many still do. Likewise with religion. Societies organized as theocracies are in the grip of particular ideas; they are not just overlays on their material circumstances.
And so we circle back to Holmes. The great free speech idea that Holmes espoused was this: "that the best test of truth is the power of the thought to get itself accepted in the competition of the market." Holmes would have said that societies founded on manifestly unsuccessful ideas tend to persist, if they do, by punishing dissent, by stifling the competition of the marketplace of ideas.
Within our own democracy, Holmes's articulation of the free speech ideal has been influential but is also highly problematic. And Healy does not claim otherwise. In the final chapter of The Great Dissent, Healy points to Citizens United and the current robust protection of commercial speech as substantially flowing from the influence of the Holmesian marketplace of ideas.
Could it have been otherwise? Maybe. The marketplace of ideas was not the only possible metaphor. For a thoughtful discussion of the differences between the Holmesian and Brandeisian theories, consider Ash Bhagwat's chapter 11 of my book Constitutional Law Stories. There he notes how Holmes's social Darwinism led him to conceive of free speech and democracy in terms of a struggle for survival, whereas Brandeis the progressive more naturally thought of deliberation as aimed at a common good.
I confess to preferring the Brandeisian view. Why, then, has the Supreme Court more fully embraced the Holmesian marketplace of ideas? One can look for answers in many places but here I think path dependence really does play a big role. But for the accidental timing of Justices' retirements and deaths, we might have five Democrats and four Republicans on the current Court, rather than vice-versa. If so, it's easy to imagine a Brandeisian rather than a Holmesian conception of free speech prevailing, at least with respect to campaign finance.
Bottom Line: Whatever the complicated interaction between events, ideas and the articulators of those ideas, Healy's book is well worth reading.