August 23, 2013

A turning point for the freedom of speech

By Thomas Healy
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Oliver Wendell Holmes Jr. is known as the Great Dissenter because of his notable dissents as an associate justice of the Supreme Court, yet he did not generally like to dissent. He would sometimes return an opinion from another justice with a note saying that although he disagreed with his colleague on the issue he would not say so publicly. He did not want to be a source of friction and felt that a public dissent might confuse the public and reflect negatively on the credibility of the Court.

His reluctance to dissent makes what is often thought to be his most important dissent—perhaps even the most important minority opinion in American legal history—all the more remarkable. And that it should be about the First Amendment and free speech, a subject on which he had always previously sided with the conservative members of the Court, makes it even more unusual. In this case, Abrams v. United States, Holmes proposed an expansive interpretation of the First Amendment that would protect all but the most immediately dangerous speech. Thomas Healy describes how Holmes’ personal and intellectual transformation came about in his superb new book, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America.

The prevailing legal understanding about free speech in the U.S. in the early 20th century was the so-called Blackstonian view, named for William Blackstone, the preeminent English jurist of the 18th century. In a nutshell, it said that individuals did not need government approval before they spoke, but once they did speak or write something they could be jailed or fined for even the most innocuous statements. Progressive thinkers and activists thought this was too restrictive: Why call it free speech if you could be subject to punishment for anything you said or wrote?

Healy does an excellent job in bringing Holmes, a complex and fascinating man, to life. He was an outstanding legal scholar, an eloquent writer, a Civil War veteran, and very well read; he had been a solidly conservative judge both in Massachusetts and on the Supreme Court, to which he was appointed in 1902. Surprisingly, he was open to the friendship of much younger men whom he respected, and he enjoyed discussing ideas with them, although he had little sympathy for the progressive causes and social reforms they supported. This group included Felix Frankfurter, Walter Lippmann and Holmes’ favorite, Harold Laski, who taught history at Harvard. Healy shows, in some detail, how these men, along with the help of Judge Learned Hand and Holmes’ Supreme Court colleague Louis Brandeis, among others, were able to change Holmes’ views. They engaged him in personal conversations and in letters. They recommended books and articles to him that slowly brought him to a more liberal view of free speech. Laski also introduced Holmes to Zechariah Chafee Jr., a Harvard law professor who had been critical of Holmes’ earlier free speech rulings and was instrumental in changing the justice’s mind.

Healy takes us through the 17 months of intellectual exploration and emotional growth, wartime hysteria and terrorist plots leading up to the famous dissent. He masterfully guides us through related cases that the Supreme Court decided during this period and explains why the 12 paragraphs of Holmes’ carefully reasoned and eloquently expressed dissent were and remain so important. A key point Holmes emphasized is that, since we can never be sure that we are right about everything, we should gather as much information as we can. To do that, he believed there must be, as he put it, “free trade in ideas.”

This is an important book, written for the general public, about how one Supreme Court justice reached a crucial decision that continues to influence cases dealing with free speech today. Healy is a law school professor who has also been a Supreme Court correspondent for the Baltimore Sun. He has written extensively about free speech, the Constitution and the federal courts. The Great Dissent succeeds as outstanding personal, intellectual and legal history.

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The Great Dissent

The Great Dissent

By Thomas Healy
ISBN 9780805094565

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