For nearly 80 years of his long, influential life, the Supreme Court Justice Oliver Wendell Holmes was no advocate of individual rights. As a judge on the Massachusetts Supreme Court, he once held that a policeman fired for expressing his political views may have had the right to talk politics, “but he has no constitutional right to be a policeman.”
Holmes was also the jurist who popularized the analogy of shouting “fire” in a crowded theater. The constitutional commitment to free speech is not broad enough to protect such reckless behavior, the justice suggested, writing the majority opinion in the case of a defendant accused of speaking against the wartime draft. How the court’s lion in winter took “the unfulfilled promise” of the First Amendment and restored its prominence at the heart of the American ideal is the subject of “The Great Dissent,” a skillfully rendered slice of history by first-time author Thomas Healy.
It was in 1919, when the “Magnificent Yankee” with the waxed mustache reconsidered his lifelong opinion on the issue of freedom of speech. Writing a brief dissent in another case involving war protest, Holmes argued that unless a “clear and present danger” can be unequivocally identified, government should not be in the business of limiting the “free trade in ideas.”
Healy, a Seton Hall University School of Law professor, describes how the First Amendment in Holmes’s day (he served on the Supreme Court from 1902 until his retirement at 90, in 1932) carried little of the weight the world ascribes to it today. The Supreme Court had never ruled in favor of a free speech claim, and books and films, “soapbox” speeches, labor protests, and profanity had all been banned in various forms across the country. Coming at a time of heightened sensitivity to communist infiltration — the defendant who opposed the draft was convicted under the Espionage Act of 1917 —
Holmes’s proposal to expand the reach of the amendment to “protect all but the most immediately dangerous speech” was truly “something radical,” he writes.
Though Holmes became known as the “Great Dissenter” for the strength of his minority opinions, he was not in fact eager to dissent, the author notes. He had no special appetite for confrontation, and he preferred to maintain a sense of collegiality on the court. But his dissent in Abrams v. the United States, in which the defendants had been convicted of tossing from New York rooftops “revolutionary” leaflets condemning US intervention in Soviet Russia, created his greatest legacy.
“[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,” Holmes wrote. “Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”
With appreciable attention to detail, Healy explains how
Holmes’s budding friendships with several much younger students of the law, including the British theorist Harold Laski, the scholar Zechariah Chafee, the future Supreme Court Justice Felix Frankfurter, and the wonderfully named judge Learned Hand, helped sway him. It was Hand who overcame his nervousness to approach Holmes on a train, gently beseeching the justice to reevaluate his thinking. And Healy’s recounting of Laski’s heady, mutually satisfying visits to Holmes’s “rambling brown Victorian” in Beverly Farms, where “tall spikes of purple delphiniums clustered by the split-rail fence,” give this historical tale of jurisprudence a welcome warmth, humanizing one of the nation’s critical developments.
“I simply was ignorant,”
Holmes wrote in reply to a congratulatory letter from Chafee, explaining his reversal. We all struggle with “imperfect knowledge,” as he’d written. Minds can change, and each voice is entitled to its opinion.