In his Monday post, Mike raises an interesting question about the subtitle of my new book, “The Great Dissent: How Oliver Wendell Holmes Changed His Mind – and Changed the History of Free Speech in America.” What would have happened, Mike wonders, if Holmes hadn’t changed his mind about the First Amendment and written his famous dissent in Abrams v. United States? Would the country and the Supreme Court still have come around to a more expansive view of free speech? Put another way, is it accurate to say – as my subtitle does – that Holmes changed the history of free speech, or would it likely have changed anyway as a result of other forces?
Although I don’t address this question directly in the book, I thought about it a lot as I was writing, and I’m grateful to Mike for giving me an excuse – and an opportunity – to share those thoughts.
First, let’s establish the parameters of the counterfactual at issue. Although there are many possible variations, I will imagine the following scenario: 1) Instead of dissenting in Abrams, Holmes joined the majority opinion written by Justice John Clarke, which upheld the defendants’ convictions under the Sedition Act; 2) As a result, Holmes did not introduce the concept of the “marketplace of ideas,” nor did he reaffirm the “clear and present danger” test he had articulated but failed to apply eight months earlier in Schenck v. United States; and 3) Holmes did not write any of his later free speech dissents, including his eloquent opinion in United States v. Schwimmer, in which he argued that the First Amendment protects not only “free thought for those who agree with us but freedom for the thought that we hate.”
With that scenario in place, the question is whether we as a society might nonetheless have arrived at the liberal view of free speech that prevails today. Mike makes an important point about the relative influence of individuals versus larger forces in shaping history, and I don’t want to be taken as naively subscribing to the Great Man Theory of History. Still, if one agrees with Mike that ideas are one of the larger forces that shape history, one has to acknowledge that ideas need individuals to promote them. So who might have done that with respect to free speech? And would they have been successful?
As Mike correctly notes, there were a number of lawyers, judges, and legal scholars in the early twentieth century who advocated a broader understanding of the First Amendment. Learned Hand, a federal judge in New York, wrote a forceful defense of free speech in a case involving a magazine called The Masses. Zechariah Chafee, a Harvard law professor, published several articles in the New Republic and the Harvard Law Review criticizing the Espionage and Sedition Acts. And Gilbert Roe, a prominent civil rights attorney, testified in Congress against the Espionage Act and submitted a brief to the Supreme Court on behalf of Eugene Debs.
It is certainly possible that these and other individuals, working together or alone, might have cultivated in the public an appreciation for the value of free and open debate, even in the face of two world wars and the rise of communism. But I have my doubts.
Hand was a notoriously insecure person who began to question his own views on free speech as soon as the Court affirmed the convictions of Debs and other socialists in March of 1919. Eventually, he renounced those views altogether, upholding the conviction of communist party leaders during the 1950s and arguing that the First Amendment is no more than an admonitory principle to guide the exercise of legislative and executive power.
Chafee was a relatively unknown scholar when he stumbled, almost by accident, into writing about the First Amendment, and for many years he resented the burden it placed on his time, pulling him away from other issues he found more interesting. In fact, after publishing a series of books and articles on free speech shortly after World War I, he largely turned away from the subject until World War II and McCarthyism renewed his interest. It should also be remembered that Chafee nearly lost his job at Harvard as a result of complaints by prominent alumni about an article he published criticizing the Abrams decision. The committee that heard the charges against him voted 6-5 to acquit, and it is not implausible that the vote might have been different had Holmes – the school’s most famous alumnus – not dissented in Abrams. In that event, Chafee would have lacked the credibility that a Harvard professorship offered and might very well have left academia to return to his old job at his family’s iron foundry.
As for Roe, he was a busy lawyer with many different interests. Although he helped to found the Free Speech League (which disbanded in 1919), he never devoted his energies entirely to the cause. Besides, he died in 1929.
Perhaps other individuals would have stepped up to carry mantle of free speech. But even if they had, there is another question that must be answered. Who on the Supreme Court would have been receptive to their campaign and willing to put his weight behind it? For unless public opinion on the issue was overwhelming, it seems unlikely that the Court would have embraced a liberal view of free speech without some internal pressure from one or more justices.
The obvious answer here is Louis Brandeis. Next to Holmes, no justice is more closely identified with the issue of free speech than Brandeis. His concurring opinion in Whitney v. California rivals Holmes’s dissent in Abrams for eloquence and passion, and, as Mike notes, many scholars today find Brandeis's justification for free speech – rooted in the values of self-government and the development of character – more appealing than Holmes’s paean to the marketplace of ideas.
But there are a few problems with this answer. First, it is not clear that Brandeis would have stuck his neck out for the cause of free speech without Holmes by his side. Although generally not one to shy away from a fight, Brandeis picked his battles carefully. That is why he often urged Holmes to write dissenting opinions in cases he disagreed with; doing so allowed Brandeis to focus his energies on other matters. In fact, he followed just that strategy in early free speech cases like Toledo Newspaper Co. and Baltzer v. United States, persuading Holmes to write dissents and then joining them. Moreover, when Holmes sided with the majority in Schenck, Frohwerk, and Debs in March 1919, Brandeis did not dissent. To the contrary, he wrote the majority opinion in Sugarman v. United States, a companion case in which the Court also affirmed convictions under the Espionage Act. Brandeis later explained that he hadn’t had time to fully think through the issues in those cases before the Court decided them. That may well be. But it is noteworthy that he did not dissent from any of the Court’s free speech decisions until Holmes broke the ice.
Let’s assume, however, that Brandeis would have eventually embraced an expansive view of free speech and been willing to stand alone in cases like Abrams, Pierce v. United States, Schaefer v. United States, Gitlow v. New York, and Whitney. If he had, would he have been able to bring the rest of the Court – and the country – along with him?
Again, I have my doubts. In spite of his extraordinary wealth and success, Brandeis was, in many ways, an outsider. The first Jew appointed to the Supreme Court (after a bitter confirmation battle), he was viewed with contempt by many in the establishment, including his fellow justice James McReynolds, who refused to talk to him. It is true that Brandeis nonetheless got things done. But he did so through sheer force of will, not because of the power of his personality or the affection he inspired. In the end, I think it’s too much to expect that someone with as many enemies as Brandeis could have successfully led the fight for free speech.
What about later justices? Hugo Black and William Douglas were staunch supporters of free speech during the 1950s and 60s. Could they have served the role that Holmes did, galvanizing the Court and the country on behalf of the First Amendment? Possibly, but they present complications of their own. Black subscribed to an absolutist view of free speech (“no law” means no law, he liked to say in reference to the First Amendment’s language) that very few judges or scholars have been willing to accept. And Douglas, for all his talent as a writer, was a somewhat idiosyncratic justice who lacked Holmes’s congeniality and good relations with his colleagues. More importantly, both Black and Douglas had the benefit of building on the foundation Holmes laid. It is by no means certain that they would have been as outspoken on the issue of free speech without the example Holmes had set years before.
Ultimately, I agree with Mike that the question he poses is impossible to answer. But there is a related question I think can be more easily answered. How would Holmes be remembered today if he had not written his dissent in Abrams? For the most part, I think he would be forgotten. Yes, academics would still cite "The Common Law," and "The Path of the Law," and many of his opinions would appear in casebooks. But it was Holmes's free speech dissents that transformed him into a folk hero, that led to his canonization by the left and his inclusion on the Mount Rushmore of American judges. His first amendment opinions are also what make Holmes such an interesting, complex character. Prior to writing them, his main contribution as a justice had been his commitment to judicial restraint, as reflected in cases such as Lochner v. New York. That contribution was important and admirable, but it was hardly the stuff of which legends are made. It was not until Holmes was forced to justify his departure from judicial restraint in defense of free speech that he became truly compelling as a judge.