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The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., and the Story behind Abrams v. United States

THOMAS HEALY

More than any other single person, Oliver Wendell Holmes, Jr., is responsible for the position that freedom of speech occupies in American society today. His landmark First Amendment opinions have not only shaped free speech doctrine and theory, they have worked their way into our collective consciousness, becoming part of our language, our view of the world, and our identity as a nation. Yet, strangely, Holmes was not always a staunch defender of free speech. Prior to writing his 1919 dissent in Abrams v. United States, he had done as much as any judge to render the First Amendment toothless. In one of the first Supreme Court cases to address the topic, he had embraced the cramped Blackstonian view that freedom of speech prohibits only prior restraints but places no limits on the government’s power to punish speakers after the fact.1 In another case, he had upheld the conviction of a small‐time

anarchist for inciting nude sunbathing.2

And just eight months before his famous dissent in Abrams, Holmes had written three opinions for the Court upholding convic- tions of socialists and pacifists who had criticized American involvement in World War I.3

It wasn’t that Holmes had a particular dislike of free speech. What irked him was the notion of individual rights in general, the idea that there are limits on what a democratic majority can do. “Every society rests on the death of men,” he liked to say.4 If a nation needs soldiers, it seizes young men and marches them off to war at the point of a bayonet.5 If an epidemic breaks out, it forces the public to get vaccinated. The same is true, Holmes thought, even when there is no emergency. If the majority wants to limit the workday of bakers to ten hours, it should be permitted to do so, regardless of whether that decision is misguided or conflicts with

some ideal of freedom.6 And he, as a judge, had no business standing in the way. “If my fellow citizens want to go to Hell I will help them,” was another favorite saying. “It’s my job.”7

In short, Holmes was in many ways the Justice least likely to stick his neck out for the right of free speech—and for the Court’s role in enforcing that right. So why did he do it? Why did a man who sneered at liberal sentimentality his whole life write one of the canonical statements of American liberal- ism, an opinion that has been compared to the speeches of Lincoln and the essays of Milton?8 That question is one of the great legal and intellectual mysteries of the twenti- eth century. And the answer is a fascinating story of chance encounters, intellectual ex- ploration, and personal relationships. But in order to appreciate how remarkable that story is, we first need to understand just how radically Holmes’ position on free speech

shifted from his early years as a state court judge to his later years on the Supreme Court.9

Free Speech Skeptic

The evidence of Holmes’ insensitivity to free speech begins during his tenure on the Massachusetts Supreme Judicial Court from 1882 to 1902. Although the First Amendment did not apply to the states at the time, Holmes decided a handful of cases raising issues of free speech. For the most part, these cases fell into two categories. The first consisted of libel suits in which the defendants asserted a common law privilege in an effort to avoid liability. In Cowley v. Pulsifer, a newspaper argued that its statements about the plaintiff were protected because they had been taken from a petition filed in court.10 And in Burt v. Advertiser Newspaper Co., a newspaper claimed it could not be held liable for false

The Espionage Act of 1917 and Sedition Act of 1918 outlawed the use of “disloyal, profane, scurrilous, or abusive language” about the government during World War I. In 1922, children of fathers who were political dissidents pleaded for their release.

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statements it believed in good faith to be true.11 In both cases, Holmes rejected the argument of privilege in favor of a rule of strict liability: “A person publishes libelous matter at his peril,” he wrote in Burt.12

Moreover, he made clear that this rule applied regardless of whether the statements con- cerned a matter of public interest. Indeed, to the extent that the statements were made public, Holmes indicated, that would only weaken the defendants’ claim of privilege, since in that situation “the harm done by a falsehood is much greater than” when the statements are made in private.13

The second category of cases involved claims of free speech by public employees or on public property. In McAuliffe v. City of New Bedford, a policeman was fired for violating a department rule banning member- ship in a political committee or solicitation of money for political purposes. Rejecting the policeman’s claim that his dismissal violated the First Amendment, Holmes wrote that the

“petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”14 Likewise, in Davis v. Commonwealth, Holmes rejected the plain- tiff’s claim that his right to free speech was violated by a city ordinance that prohibited public addresses on Boston Common. “For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house,” he wrote.15 Although both cases concerned the power of government to regulate speech when acting outside its capacity as sovereign, Holmes’ opinions nevertheless reflected a narrow view of free speech that has since been rejected by the Supreme Court.16

With his appointment to that Court in 1902, Holmes had an opportunity to broaden the guarantee of free speech. Instead, he narrowed it. In Patterson v. Colorado, the Court heard an appeal from a Denver

Charles Schenck and Elizabeth Baer, officers of the Socialist party of Philadelphia, oversaw the publication of a leaflet attacking the constitutionality of the draft and attempted to distribute thousands of the flyers to recently drafted American servicemen. Above is a 1914 Socialist rally in New York’s Union Square.

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newspaper that had been fined for criticizing a decision of the Colorado Supreme Court. The newspaper claimed that the fine violated the First Amendment, but a majority of the Court disagreed. In an opinion written by Holmes, the Court held that, even if the rights of free speech and free press applied against the states (a doubtful proposition at the time), “the main purpose of such constitutional provi- sions is ‘to prevent all such previous restraints upon publications as had been practised by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.” 17

With that statement, Holmes embraced the Blackstonian view of free speech, which drew a sharp distinction between prior restraints and subsequent punishment.18 Blackstone’s view was actually a significant breakthrough for civil liberties in England, since for much of the seventeenth century Parliament had operated a licensing system that banned any publication not approved by an official censor. But to early twentieth century progressives—as to most jurists now—the Blackstonian position seemed pinched and formalistic. What was the point of free speech if you could still be punished for anything you said?

Eight years after Patterson, Holmes wrote another opinion for the Court rejecting a free speech claim. In Fox v. Washington, a small‐time anarchist challenged his convic- tion for advocating unlawful conduct. The basis of the conviction was an article entitled “The Nudes and the Prudes,” which celebrat- ed nude sunbathing and called for a boycott of the “prudes” in society who had begun to crack down on the practice. The anarchist maintained that his article was protected by the First Amendment, but Holmes disagreed. Even though there was no evidence that the article might lead to any danger—much less an imminent one—he concluded that it was not protected for the simple reason that it encouraged a breach of the state laws against indecent exposure.19

Such were Holmes’ views on free speech when the Court decided a series of cases at the end of World War I involving the 1917 Espionage Act, which made it a crime to willfully cause or attempt to cause insubordi- nation in the military, willfully obstruct the draft, or willfully publish false reports with the intent to interfere with the war.20 The first of these decisions was Schenck v. United States, an appeal from Charles Schenck and Elizabeth Baer, officers of the Socialist party of Philadelphia who had overseen the publication of a leaflet attacking the constitu- tionality of the draft. Entitled “Long Live the Constitution of the United States” on one side and “Assert Your Rights” on the other, the leaflet quoted the Thirteenth Amendment’s ban on slavery, compared conscripts to convicts, and encouraged readers to write to their congressmen requesting repeal of the draft. It also advised those who were against the war to register as conscientious objectors, urging them not to be intimidated by flag‐ waving politicians or the capitalist press. “If you do not assert and support your rights,” the document stated, “you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.”21 Some of the fliers were sent to draftees, and when the postal inspector spotted them in the mail he led a raid on the party’s downtown bookstore. There, he found several thousand copies of the leaflet, tied up with string and stacked on tables and chairs.22

He also found a notebook implicating both Schenck and Baer in the mailings. They were each charged with conspiracy to cause insubordination and obstruct recruiting, con- victed by a jury, and sentenced to six and three months in jail, respectively.

The second case, Frohwerk v. United States, was an appeal from Jacob Frohwerk, the editor of a German‐language newspaper in Kansas City called the Missouri Staats‐ Zeitung. The Staats‐Zeitung was a small newspaper with a circulation of just a few thousand, but one of its subscribers was the

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Department of Justice, which was keeping tabs on German papers for evidence of espionage.23 Officials read the paper during the summer and fall of 1917 as the draft went into effect and the first casualty lists came back from Europe. But it was not until the following spring, when the department was under pressure to crack down on radicals, that officials brought an indictment against Frohwerk. The charges were based on a dozen articles published between June and December 1917, with each article serving as the basis for a separate count. Several of the articles criticized England, claiming it had instigated the conflict to shore up its empire and had manipulated the United States into joining the cause. A few repeated the stock socialist line that the country had gone to war to appease the bankers on Wall Street. One simply reported that Russia had signed a treaty with Germany, which would make it harder for the Allies to secure an honorable peace. The only article that came close to inciting insubordination was an editorial in August 1917 on the draft riots breaking out around the country. Although the paper agreed that the draft should be obeyed until struck down by the courts, it expressed sympathy for the young men who had been called upon to leave their homes. “We ask who then will arise and pronounce a verdict of guilty over such a man if he stops reasoning and follows the first impulse of nature: self preservation?”24 The paper disclaimed any intent to encourage draft resisters, stating that it did “not endorse their action in any manner.” But that stipulation had little effect. After three minutes of deliberation, a jury convicted Frohwerk of violating the Espio- nage Act, and a judge sentenced him to ten years in prison.25

Finally, there was the case of Eugene Debs, leader of the national socialist party and a five‐time candidate for president. His conviction was based on a speech he gave at the Socialist party annual picnic in Canton, Ohio, during the summer of 1918. The speech

lasted more than two hours and covered a variety of themes, but it was essentially a stump speech designed to fire up the base in advance of the fall elections.26 Debs traced the history and growth of socialism and predicted its ultimate triumph over capitalism. As for the war, he said nothing that explicitly urged interference with it, though he did praise party members who had been convicted of oppos- ing the draft. He also denounced the capitalists who were responsible for the war but wanted the working class to fight it. “They have always taught you that it is your patriotic duty to go to war and to have yourselves slaughtered at a command,” Debs told his audience. “But in all of the history of the world you the people never had a voice in declaring war. You have never yet had!”27

In spite of such comments, the Depart- ment of Justice initially concluded that Debs had not violated the Espionage Act. In a letter to the U.S. Attorney in Cleveland, the head of the department’s war unit explained that most of what Debs said was lawful.28 And though some of his statements may have come close to the line, the case was “by no means a clear one.” “All in all,” the letter concluded, “the Department does not feel strongly convinced that a prosecution is advisable.” The U.S. Attorney did feel strongly, however. He charged Debs with attempting to incite disloyalty in the military and obstruct the draft. A jury convicted Debs, and a judge sentenced him to ten years in prison.

The three cases were scheduled to be heard together the first week of January 1919, but because of complications in Frohwerk’s case his appeal and Debs were moved to the end of the month. Nonetheless, it appears from the timeline of events that the Court discussed the cases as a group in early February, during a four‐week recess. The Justices voted to uphold the convictions in all three cases, and Holmes was assigned to write the opinions.

Of the three, his opinion in Schenck contained the most complete discussion of

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free speech. It began, surprisingly enough, by retreating from his earlier embrace of Black- stone. “It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints,” Holmes wrote, “although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado.”29 This wasn’t a complete admission of error. There was the use of that qualifying phrase, “it well may be.” And the word “intimated” implied that Patterson had not fully embraced the Blackstonian view. Still, it was enough to establish that the First Amendment applies to subsequent punishments as well as prior restraints.

Just because the First Amendment protected against subsequent punishments, however, did not mean its protections were absolute. Holmes made this clear a few sentences later, writing that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”30 Because this example has become such a famous argument against an absolutist interpretation of the First Amendment, a number of scholars have speculated about its source. Some have suggested it came from Holmes’ younger years in Boston, when he and his wife, Fanny, would sometimes hurry to the scene of a fire upon hearing a siren.31 Others have noted that there were a number of prominent theatre fires in the decades prior to 1919, which would have been on the minds of many Americans.32

As it turns out, Holmes almost certainly borrowed the example from the U.S. Attorney in Cleveland, who made a similar point in his closing argument to the jury in the Debs case: “A man in a crowded auditorium, or any theatre, who yells ‘fire’ and there is no fire, and a panic ensues and someone is trampled to death, may be rightfully indicted and charged with murder.”33 That statement appeared in the transcript of record that was filed with the Court in the Debs case, where Holmes would have almost surely seen it.34

Having explained why free speech was not absolute, Holmes next addressed its limits. As a number of scholars have demonstrated, this part of his analysis was heavily influenced by his thinking about the law of attempts.35

The traditional view was that a person is guilty of attempt when he both intends to commit a crime and takes any step toward its comple- tion. Holmes disliked that approach because it placed too much emphasis on the issue of moral guilt. Why should society care if someone has a bad heart unless his actions pose a danger to others? For that reason, Holmes thought courts should require more than a mere preparatory step before a person could be convicted of attempt. “As the aim of the law is not to punish sins, but is to prevent certain external results,” he wrote in an 1897 case, “the act done must come pretty near to accomplishing that result before the law will notice it.”36 Thus, if a person lights a match next to a haystack with the intent to start a fire, he should be punished for attempted arson. But if he merely buys a box of matches with the same intent, the law should leave him be.37

This wasn’t a bright‐line test, of course. There were many possibilities between these two examples, and it was unclear exactly how near to the result a person had to come before he was guilty of attempt. But Holmes didn’t like bright‐line tests anyway, since the answer in any given case would always depend on circumstances. As he wrote in another attempt case while on the Supreme Court, “It is a question of proximity and degree.”38

In Holmes’ view, the issue posed in Schenck and the other speech cases was analogous to the issue raised by the crime of attempt. As with attempts, a person should not be convicted for the thoughts in his head or the feelings in his heart. But once he expressed those thoughts or feelings in a way that posed a sufficient danger to society, the protections of free speech ended. And the formula he adopted for expressing this idea was strikingly similar to the formula he had adopted in the context of attempts. “The question in every

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case,” he wrote in Schenck, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”39

On its face, this formula appeared quite sensitive to the value of free speech. Most judges had analyzed Espionage Act cases by asking whether the speech at issue had a “bad tendency” —meaning there was some chance it might lead to harm at some point in the future.40 Holmes’ formula seemed to require more. The phrase “clear and present danger” suggested that a mere possibility of harm was not enough; that the likelihood of harm must be high. It also implied that the risk of future harm is insufficient; that the harm must be imminent. And had this standard been applied to the facts of Schenck, the convictions should have been reversed, since there was little evidence that Schenck and Baer posed a clear risk of imminent harm. But Holmes did not apply this standard to the facts. Instead, he reverted to his old belief that individual rights are subordinate to the needs of the state. “When a nation is at war,” he wrote, “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right.”41

Moreover, when Holmes turned to the other two cases, he didn’t so much as mention the words “clear and present danger.” His opinion in Frohwerk conceded that the articles in the Staats‐Zeitung were not inherently unlawful. He also acknowledged that, unlike Schenck and Baer, Frohwerk had not made “any special effort to reach men who were subject to the draft.”42 And if the evidence showed that Frohwerk was a poor man turning out copy for a small newspaper (which he was), “there would be a natural inclination to test every question of law to be found in the record very thoroughly before

upholding the very severe penalty im- posed.”43 The problem, according to Holmes, was that the parties had not agreed on a bill of exceptions—the document that would explain exactly what evidence had been presented and what objections had been raised. And without that document, Holmes concluded, the Court had to “take the case on the record as it is, and on that record it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied upon by those who sent the paper out.”44 This statement—with its speculation about un- known evidence and its reference to “a little breath” that might “kindle a flame”—was a far cry from the “clear and present danger” language of Schenck. And it suggested that Holmes had used that phrase casually, without intending to change the law.45

His opinion in Debs only reinforced that impression. Holmes began by acknowledging that the main purpose of Debs’s speech was to promote socialism, which the Espionage Act did not prohibit. “[B]ut if a part or the manifest intent of the more general utterances was to encourage those present to obstruct the recruiting service and if in passages such encouragement was directly given, the immu- nity of the general theme may not be enough to protect the speech.”46 Holmes then noted that Debs had told his audience he could not say all he wanted to, thus “intimating to his hearers that they might infer that he meant more.”47 He also cited Debs’s support of the Socialist party’s anti‐war proclamation as proof that he had intended to obstruct the draft. Finally, Holmes endorsed the trial judge’s statement of law to the jury. “We should add that the jury were most carefully instructed that they could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service, and unless the defendant had the specific intent to

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do so in his mind.”48 This was the strongest indication that Holmes was not trying to transform the law. The jury instructions were similar to the bad tendency test. And if they were acceptable, then “clear and present danger” was little more than a clever turn of phrase.49

Even Holmes acknowledged that his opinions in these three cases were not fully thought out. In a letter responding to criticism of the Debs decision, he explained that “[t]here was a lot of jaw about free speech, which I dealt with somewhat summarily in an earlier case, Schenck v. U.S., also Frohwerk v. U.S.,”50 Nonetheless, he defended the decisions, writing that “the powers of the Constitution certainly never supposed that the provision for it gave a man immunity for counseling a murder or falsely crying fire in a theatre, and if when a country is at war a man

chooses to try to obstruct it and says things that tend directly to that result he can’t complain if he is laid by the heels.”51

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As of March 1919, then, Holmes had ruled against free speech claims in a wide range of contexts as both a state court judge and a Supreme Court Justice. In fact, there are only two instances in which he ruled in favor of a party raising free speech claims, and neither case undermines the general theme established above.

The first case is Toledo Newspaper Co. v. U.S., an appeal from a newspaper that had been convicted of contempt by a federal judge for questioning his handling of a pending case. A majority of the Justices rejected the claim that this violated freedom of the press, and Holmes was initially inclined to go along. But Justice Brandeis, his closest

The Baltzer case involved a group of socialists from a small farming community in South Dakota who opposed American involvement in the war, viewing it as a capitalist conspiracy against the working class. When they found that the draft quota for their county was higher than for neighboring counties, they took their case to the Supreme Court in 1919.

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friend on the Bench, privately urged him to dissent,52 and, when the majority opinion was circulated, Holmes agreed to do just that. He did not rely on the First Amendment, however. Nor did he claim that the conviction was unjustified. Instead, he noted that the federal statute authorizing judges to rule on contempt charges themselves (i.e. without submitting the matter to a jury) was limited to situations in which a party engages in misbehavior “in their presence or so near thereto as to obstruct the administration of justice.”53 The phrase “so near thereto as to obstruct,” Holmes argued, required a showing of immediate danger. And because “a judge of the United States is expected to be a man of ordinary firmness of character,” there was no immediate danger that the newspaper’s criti- cism would influence the judge’s decision or otherwise obstruct the administration of justice.54 Thus, although Holmes was willing to give the newspaper the benefit of a jury trial on the issue of contempt, his dissent was far from a ringing defense of free speech.

The other case is Baltzer v. United States, which was actually the first of the Espionage Act appeals to reach the Court. Argued in November 1918, Baltzer involved a group of twenty‐seven socialists from a small farming community in South Dakota.55 Like many socialists, the farmers opposed American involvement in the war, viewing it as a capitalist conspiracy against the working class. But they had a more specific complaint as well. When the draft quotas for each county were announced in the summer of 1917, the number for their county was higher than for neighboring counties.56 The reason for this was simple: more young men in those counties had voluntarily enlisted, which meant that fewer had to be forced into service. But the farmers thought they were being targeted for their political beliefs and German heritage. So they sent a petition to the governor, who was in charge of administering the draft. Brief and clumsily written, the petition demanded that the quota for each

county be fixed without regard to the number of volunteers. It also demanded that the governor call a referendum on the draft and that he oppose the use of bonds to fund the war. The farmers were arrested, convicted of obstructing the draft, and sentenced to one to five years in prison.

In their appeal to the Supreme Court, the farmers relied not only on the right to free speech, but also on the right to petition the government for a redress of grievances.57

This made little difference to a majority of the Court, which upheld the convictions. But Brandeis was again troubled by the result and visited Holmes in his private study, where he “catspawned” him “to do another dissent on burning themes.”58 Short and to the point, Holmes’ dissent argued that the defendants had done nothing more than sign a petition to the governor seeking a change in the law. “[T]he changes advocated are changes by law, not in resistance to it, the only threat being that which every citizen may utter, that if his wishes are not followed his vote will be lost.”59 As he wrote, his words became more impassioned, and he concluded with a grand, sweeping flourish:

Real obstructions of the law, giving real aid and comfort to the enemy, I should have been glad to see punished more summarily and se- verely than they sometimes were. But I think that our intention to put out all our powers in aid of success in war should not hurry us into intoler- ance of opinions and speech that could not be imagined to do harm, although opposed to our own. It is better for those who have unques- tioned and almost unlimited power in their hands to err on the side of freedom. We have enjoyed so much freedom for so long that perhaps we are in danger of forgetting that the bill of rights which cost so much blood to establish still is worth

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fighting for, and that no tittle of it should be abridged. I agree that freedom of speech is not abridged unconstitutionally in those cases of subsequent punishment with which this court has had to deal from time to time. But the emergency would have to be very great before I could be persuaded that an appeal for political action through legal chan- nels, addressed to those supposed to have power to take such action was an act that the Constitution did not protect as well after as before.60

At first glance, it is tempting to read this paragraph as a full‐throated endorsement of free speech, which is how one scholar has interpreted it.61 But a closer reading suggests that it is merely a preliminary step in Holmes’ transformation. For one thing, Holmes begins

by explaining that, in some instances, the government did not go far enough in punish- ing those who obstructed the law or gave aid and comfort to the enemy. Second, although Holmes argues for tolerance of opinions that are “opposed to our own,” he limits that tolerance to “opinions and speech that could not be imagined to do harm.” This is a far cry from the clear and present danger test and sounds more like the bad tendency test. Finally, it is not even clear from his Baltzer dissent that Holmes is willing to protect entirely harmless speech. Just a few sentences later, he writes that “freedom of speech is not abridged unconstitutionally in those cases of subsequent punishment with which this court has had to deal from time to time.” In other words, Holmes has not yet abandoned the Blackstonian view of free speech, which prohibits only prior restraints. Why, then, does Holmes object to the conviction of the

Oliver Wendell Holmes, Jr.’s landmark First Amendment opinions have not only shaped free speech doctrine and theory, they have worked their way into our collective consciousness, becoming part of our language. But it was not until his 1919 dissent in Abrams that Holmes, appointed in 1902, insisted on free speech protection.

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Baltzer defendants, who were punished after, not before, they sent their petition to the governor? Because they were relying not only on the right to free speech, but also on the right to petition the government for a redress of grievances. And like other jurists at the time, Holmes was apparently willing to grant broader protection tothe latter right than to the former.62

Holmes’ dissent in Baltzer was never published because, less than a week after he circulated it to his colleagues (and before the Court announced its decision), the govern- ment unexpectedly confessed error in the case and asked that it be sent back to the lower court for a new trial. As a result, the Court issued a one‐line order reversing the defend- ants’ convictions, and the case disappeared as if it had never happened.63 But, even if his dissent had been published, it would not likely have changed the history of the First Amend- ment or Holmes’ reputation because of the narrowness of its reasoning. At most, Baltzer and Toledo Newspaper show an emerging willingness on Holmes’ part to rule in favor of free speech claimants, particularly when pressured to do so by Brandeis.

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In addition to his judicial opinions, Holmes addressed the issue of free speech in a handful of letters to friends and acquaintances in the years prior to Abrams. First, according to a newly discovered entry in the diary of Chauncey Belknap, who served as Holmes’ secretary during the 1915–16 term, Holmes discussed the issue in a letter to “an English lady” during the fall of 1915.64 The woman had apparently written to Holmes about the censorship of war news. In response, Belknap recorded in his diary, Holmes wrote a “dissertation on the logically indefensible right of free speech.” Governments concede the right for three reasons, Holmes explained: “either because they don’t care, they are not cock‐sure they are right, or they haven’t the power to check speech.”

This is almost identical to what Holmes told Harold Laski three years later in the

summer of 1918. Responding to a letter in which Laski made the case for tolerance, Holmes wrote:

My thesis would be (1) if you are cocksure, and (2) if you want it very much, and (3) if you have no doubt of your power—you will do what you believe efficient to bring about what you want—by legislation or otherwise. In most matters of belief we are not cocksure, we don’t care very much, and we are not certain of our power. But in the opposite case we should deal with the act of speech as we deal with any other overt act that we don’t like.65

He used similar language a few days later in a letter to the American diplomat Lewis Einstein, noting that “the logical result of a fundamental difference is for one side to kill the other—and that persecution has much to be said for it.”66 And he said the same thing to Learned Hand less than a month earlier after their chance encounter on a train from Washington D.C. to Boston. I discuss this encounter in more detail in Part V, but for now it is sufficient to note that, when Hand spoke in favor of toleration, Holmes responded, “You strike at the sacred right to kill the other fellow when he disagrees.”67

None of these comments suggest that Holmes’ extra‐judicial views on free speech were different from the views he expressed in his written opinions. And taken together, the two strands of evidence establish without much doubt that prior to the fall of 1919 Holmes was not a strong believer in free speech. It is true that his views had begun to evolve. In Baltzer, he had written eloquently on the subject, even though his reasoning was quite narrow. And in Schenck, he not only abandoned the Blackstonian view, but also articulated a standard that, in theory, was quite speech protective. Unfortunately, Holmes did not actually apply that standard, and his statements in Frohwerk, and Debs—along

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with his vote to affirm the convictions—show that he had still not taken the decisive step toward an expansive view of free speech.

First Amendment Hero

Holmes’ dissent in Abrams represented just that step. In many ways, the government’s case in Abrams was stronger than in the earlier cases. The defendants were Russian immi- grants active in the anarchist movement then flourishing in New York.68 Like most anarchists, they opposed the United States’ involvement in the war, believing it was motivated by capitalist greed.69 But unlike many of the German socialists who were prosecuted under the Espionage and Sedition Acts, the anarchists had no sympathy for the Central Powers. So it was not until President Wilson sent troops into Russia during the summer of 1918 that they printed two leaflets attacking the President’s actions.

The first, written in English, denounced Wilson as a liar who had deceived the country about the real purpose of the Russian expedition, which was “to crush the Russian Revolution.” “What have you to say about it?” the flier asked. “The Russian Revolution cries: ‘Workers of the World! Awake! Rise! Put down your enemy and mine.’ ”70 The second flier, written in Yiddish, sounded many of the same themes. But, whereas the first leaflet was addressed to the people of America, this one targeted a more specific audience: “Workers in the ammunition facto- ries, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.” And, in place of the first leaflet’s vague call to “put down your enemy and mine,” this one proposed a more concrete plan of attack: a general strike in the munitions factories.

Working in a basement store on Madison Avenue, the anarchists printed 5,000 copies of each leaflet.71 Then, they began scattering

them from rooftops and windows in lower Manhattan, where many munitions workers lived.72 When passersby complained to the police about the fliers, officials tracked down its authors and charged them with violating the 1918 Sedition Act, an amendment to the Espionage Act.73 In four counts, the defend- ants were charged with conspiring to willfully publish scurrilous language about the form of the United States government, bring that form of government into disrepute, incite resistance to the war against Germany, and curtail the production of weapons and ammunition with intent to interfere with the war. They were

Russian‐born Jewish anarchists Jack Abrams (above) and Mollie Steimer scattered 5,000 leaflets from rooftops and windows in lower Manhattan, where many World War I munitions workers lived. One leaflet, signed “revolutionists,” denounced the sending of American troops to Russia, and another, written in Yiddish, opposed U.S. efforts to hinder the Russian Revolution and called for a strike against weapons production. Abrams was convicted under the Sedition Act of 1918 and the Supreme Court upheld the conviction over a dissent from Justices Holmes and Brandeis.

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convicted and sentenced to prison terms ranging from fifteen to twenty years.

When the case came before the Court in the fall of 1919, seven Justices voted to affirm.74 To them, the anarchists’ free speech claims were no stronger than the ones the Court had rejected earlier in the year. But Holmes, joined by Brandeis, dissented.75 His dissent rested on two separate and independent grounds. First, he disputed the jury’s conclu- sion that the defendants had violated the Sedition Act. Nothing in the leaflets could be interpreted as assailing the form of the United States government, he argued. Nor could they be construed as encouraging resistance to the war against Germany. As to the claim that the defendants had incited the curtailment of military supplies, Holmes acknowledged that they had advocated a strike in the munitions factories. To violate the Sedition Act, howev- er, they must have intended to interfere with the war. And in Holmes’ view, the defendants never had that intent. They were not German sympathizers who hoped the Allies would lose the struggle in Europe. They were Russian immigrants who wanted Wilson to stay out of their homeland’s affairs.76

Even if the anarchists had violated the Sedition Act, however, Holmes argued that their speech was protected by the First Amendment. In making this argument, Holmes disavowed the notion—suggested in Schenck—that free speech is inapplicable during times of war. The government’s power to restrict speech “undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times,” he wrote. “But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same.”77

What was that principle? Was it the clear and present danger test he had articulated in Schenck and then seemingly abandoned? Or was it the bad tendency test he had appeared to fall back on in Frohwerk and Debs? Holmes’ answer was clear: “It is only the present danger of immediate evil or an intent to bring

it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned,” he wrote.78

As evidence of his commitment to this new standard, he used the words “immediate” or “imminent” seven times in the opinion—three times in one sentence alone.

Just as important as Holmes’ reaffirma- tion of the new test was his application of it. In Schenck, he had made no attempt to assess whether the defendants posed a clear and present danger. Instead, he had simply concluded that the First Amendment did not protect their speech. In Abrams, by contrast, he focused on the actual circumstances of the “crime.” And although the circumstances were similar to those in Schenck, Holmes’ conclusion was quite different: “Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.”79

Holmes ended his dissent by offering a theoretical justification for free speech. This justification began with a repetition of Holmes’ frequent observation that “persecu- tion for the expression of opinions seems to me perfectly logical.”80 But for the first time, he moved beyond the logic of persecution to the lesson of experience: “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.”81 In a subsequent section, I will discuss the inspiration behind Holmes’ market meta- phor in this passage. For now, it is sufficient to note how different this language is from his opinions in Schenck, Frohwerk, and Debs and from his earlier statements about free speech.

HOLMES AND FREE SPEECH 47

And Abrams was just the start. During the same term, the Court heard two other appeals involving the Espionage Act. The first was Schaefer v. United States, an appeal from the editors and officers of a German‐language

newspaper called the Philadelphia Tage- blatt. 82 Founded in 1877, the Tageblatt was known as a “society” paper—not because it covered the well‐heeled and glamorous, but because it reported on the activities of all the

Young Harvard law professor Zechariah Chafee published an influential article in The New Republic arguing that the 1917 Espionage Act was acceptable because it was closely linked to military operations and applied only to speakers who expressly advocated unlawful conduct. But he also argued that the 1918 Sedition Act was unconstitutional because it made it a crime to say almost anything against the war or even to make the case for peace.

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local societies (building associations, singing groups, and gymnastics clubs) that were at the center of German immigrant life.83 When war broke out in Europe, the editors decided to expand their coverage of national and international events. The problem was they had no way of getting this news. With a small staff and a limited budget, they could afford neither to send their own reporters overseas nor to subscribe to the wire services. Instead they copied articles from other papers and printed them as their own, usually rewriting the headline or changing a sentence or two to make the stories fit onto the page. In the fraternity of cash‐strapped and harried news- paper editors, this was a common practice. But eventually it led to the Tageblatt’s prosecution. For, when government agents began reading the paper in the summer of 1917, they concluded that many of the changes made to the reprinted articles were favorable to the German cause.84 They therefore charged the editors with making false reports with intent to hinder the war, as well as obstructing recruiting.

Although Schaeffer was argued the same week as Abrams, the Court’s opinion was not published until four months later. But the outcome was the same. The Court rejected the defendants’ claim that the government had failed to prove the falsity of their reports, insisting that the jury’s factual findings were binding.85 It also rejected their claim that the articles were harmless, explaining that under the Espionage Act the government was not required to prove harm. “The tendency of the articles” was enough, the Court ruled, “and to have required more would have made the law useless.”86

As in Abrams, Holmes dissented. But instead of writing an opinion, he joined a dissent by Brandeis, which picked up where Holmes had left off in Abrams—with the clear and present danger test. Although the majority had ignored that standard, Brandeis declared that it, not bad tendency, was the correct test to apply.87 He also argued that the jury’s

findings were not inviolable, and he scoffed at the notion that the editors had violated the ban on false reports.88

A week later, Holmes and Brandeis dissented in another Espionage Act case, Pierce v. United States. Argued in Novem- ber 1919, after the Court decided Abrams, Pierce involved four socialists from Albany who had circulated copies of a pamphlet entitled “The Price We Pay.”89 Written by an Episcopal clergyman and printed by the national Socialist party, the pamphlet repeated the standard leftist critiques of the war: that it was being waged to protect J.P. Morgan’s loans to England, that victory was impossible, and that the only way out of the mess was to embrace socialism. Initially wary of distribut- ing the pamphlet, the defendants changed their minds after a federal court in Baltimore ruled that it did not violate the Espionage Act.90 Unfortunately for them, that decision had no authority in New York, and prose- cutors there charged them with making false statements and conspiring to cause insubordi- nation in the military. A jury convicted them, and they appealed to the Supreme Court, which repeated much of what it had said in Schaefer. Whether the defendants intended to interfere with the war and whether they posed any risk of doing so were issues of fact for the jury. As long as that decision was supported by evidence, the Court could not overturn it on appeal.91

Brandeis again wrote a dissenting opin- ion, joined by Holmes. In typical Brandeis fashion, he marched methodically through the evidence, explaining that none of the state- ments were false because they were either matters of opinion or hyperbole.92 He also disputed the claim that the pamphlet had posed a danger of causing insubordination in the military, pointing out that it had been circulated only among civilians and was primarily designed to recruit members for the Socialist party.93

Pierce was the last Espionage Act case decided by the Court, but it was not the last

HOLMES AND FREE SPEECH 49

case in which Holmes voted in favor of free speech. In Milwaukee Social Democrat Publishing Company v. Burleson, he dis- sented from a decision upholding the post- master’s denial of second‐class mailing privileges to a socialist newspaper during the war. Although Holmes acknowledged that the government is not obligated to operate a postal service at all, he argued that as long as it does so “the use of the mails is almost as much a part of free speech as the right to use our tongues.”94 This statement runs directly counter to his opinions in McAuliffe and Davis, in which he held that the government can force speakers to choose between a governmental benefit (such as a job or the use of a park) and the right of free speech.95

And it illustrates the extent to which his views on free speech had evolved in the intervening years.

Holmes went even further in support of free speech in Gitlow v. New York, an appeal from a socialist editor who had advocated overthrow of the government through “revo- lutionary mass action.”96 A majority of the Court upheld the editor’s conviction, ruling that the government is not required to wait until a revolution is imminent but may “suppress the threatened danger at its incipi- ency.”97 Holmes disagreed. Arguing that “clear and present danger” was the applicable standard, he asserted that the defendant’s “redundant discourse had no chance of starting a present conflagration.” He also expressed a willingness to accept the long‐ term consequences of radical speech, no matter how unpleasant. “If in the long run the beliefs expressed in proletarian dictator- ship are destined to be accepted by the dominant forces of the community the only meaning of free speech is that they should be given their chance and have their way.”98

Finally, Holmes defended free speech in the 1929 case of Rosika Schwimmer, a pacifist who had been denied citizenship for refusing to swear that she would take up arms to defend the United States.99 Although the

case did not technically involve the First Amendment, Holmes saw it as one more example of the government’s effort to impose uniformity of belief—an effort he now categorically opposed. “If there is any princi- ple of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”100

���

From Abrams to Schwimmer, then, Holmes was a staunch supporter of the First Amendment, voting to uphold free speech claims in a wide variety of contexts. There are only two cases after Abrams in which he rejected free speech claims. One was Whitney v. California, an appeal from a California communist who was convicted under the state’s criminal syndicalism law for belonging to a group that advocated violent overthrow of the government. But Holmes did not join the majority opinion upholding the conviction. Instead he joined Brandeis’ concurring opin- ion, which eloquently defended the right of free speech before concluding that the defen- dant had procedurally defaulted on her First Amendment claim.101

The other is Gilbert v. Minnesota, a 1920 case involving a state law nearly identical to the Espionage Act. A majority of the Court upheld the defendant’s conviction, rejecting his claim that the law violated freedom of speech. Brandeis dissented, arguing that the state law interfered with the federal govern- ment’s control over military affairs.102 But Holmes did not join that dissent, believing it went “too far.”103 Instead he concurred separately in the judgment without explanation.

Because Holmes voted to uphold the conviction in Gilbert, at least one scholar has cited it as evidence that Holmes did not fundamentally change his views on free speech between Schenck and Abrams.104

But there are two alternative explanations for Holmes’ concurrence in Gilbert. First, according to a memo written by Dean

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Acheson, who was secretary to Brandeis at the time, it was unclear whether the defendant in Gilbert had properly raised the issue of free speech in the trial court.105 Second, there is reason to think that Holmes’ vote in Gilbert was based not on his views about free speech but on his aversion to using the due process clause of the Fourteenth Amendment to protect substantive rights. In a conversation with Frankfurter after Gilbert was decided, Brandeis indicated that as long as the conservatives on the Court were using due process to protect the right to property it should also be used to protect free speech. But Holmes, Brandeis added, “doesn’t want to extend” the amendment’s reach.106 By the time of Gitlow, four years later, Holmes was willing to accept the incorporation of free speech through the due process clause. But his opinion in that case suggests that he did so primarily because of the broad scope that the majority of the Court had given to the word “liberty” in other cases.107 In other words, Holmes appears to have embraced precisely the position Brandeis laid out in his conver- sation with Frankfurter.

Was Holmes Consistent All Along?

In spite of the foregoing evidence, some scholars maintain that Holmes did not change his mind about free speech in the months leading up to Abrams.108 In support of this claim, they offer a number of arguments, which, though ultimately unpersuasive, de- serve to be addressed.

First, some scholars point out that Holmes himself never acknowledged that he changed his mind, nor admitted that his early Espionage Act opinions were incorrect. To the contrary, in Abrams he explicitly reaf- firmed those decisions, stating that he had never seen “any reason to doubt that the questions of law alone that were before this Court in the cases of Schenck, Frohwerk, and Debs were rightly decided.”109 Moreover, in a

letter to Nina Gray in 1921, he denied that he had been persuaded by Brandeis to adopt a more liberal view of free speech, stating that he had “turned that way long before” Brandeis joined the Court.110

With respect to Holmes’ statement in Abrams, I submit that one must take it with a grain of salt. It is the exceptional judge who is willing to publicly admit his mistakes, and Holmes was not exceptional in this sense. As nearly everyone who has studied his life has concluded, Holmes was defensive, sensitive to criticism, and reluctant to give credit for his ideas to others.111 Instead of conceding that a decision was wrong, he was more likely to qualify or distinguish it. Consider his treat- ment of Patterson v. Colorado in Schenck. Holmes did not candidly acknowledge that he was overruling Patterson and renouncing Blackstone. He hedged, first by saying “it well may be” that freedom of speech is not limited to prior restraints, then by suggesting that protecting against such restraints might nonetheless be its “main purpose,” and then again by implying that Patterson had only “intimated” as much. His statement in Abrams is similarly qualified. Holmes does not defend the convictions in Schenck and the other cases. He claims only that “the questions of law that alone were before this Court” were rightly decided. In doing so, he distances himself from the prosecution of the defend- ants without accepting any responsibility for their plight.

As for Holmes’ letter to Nina Gray, there is a major flaw with his claim that he embraced free speech “long before” Brandeis joined the Court. Brandeis was confirmed to the Court in June 1916. Yet only eight months earlier, in October 1915, Chauncey Belknap had quoted Holmes as referring to the “logically indefensible right of free speech.” And only seven months before that, Holmes had written his opinion in Fox v. Washington upholding the conviction of an anarchist editor for encouraging a violation of the laws against public indecency. Therefore,

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unless Holmes experienced a change of mind between October 1915 and June 1916—and unless the phrase “long before” refers to a period of several months—his claim to Gray is simply not believable.

Next, some scholars argue that Holmes voted differently in Abrams than in the earlier cases not because he changed his mind about free speech but simply because the issues raised were different. It was Holmes, after all, who argued that “general propositions do not decide concrete cases”112 and that the outcome in any given case would depend on the circumstances. So perhaps there was something in the circumstances of Abrams that led him to view that case differently than the early ones.

What might that have been? A few scholars have emphasized that Schenck, Frohwerk, and Debs all arose under provi- sions of the 1917 Espionage Act while Abrams arose under the Sedition Act of 1918, an amendment to the earlier law. It is true that many progressives at the time viewed the two acts in starkly different terms. The Espionage Act, which was closely tied to military concerns, was primarily designed to prohibit certain results, such as the obstruction of the draft. The Sedition Act went much further, targeting not only results—like the curtailment of munitions production—but criticism of the government. Even Harvard Law professor Zechariah Chafee argued that, whereas the Espionage Act might be upheld if narrowly construed, the Sedition Act was almost certainly unconstitutional.113 Holmes might have felt the same way and thus have been unwilling to give the government the same latitude in enforcing the latter as the former.

There are two problems with this hypoth- esis. First, although the first two counts in Abrams charged the defendants with assailing the form of the United States government, the third count charged them with encouraging resistance to the war against Germany, and the fourth count charged them with inciting

curtailment of munitions production. These last two counts were directly tied to military concerns and, if substantiated, would have been no less troubling than the charges at issue in the earlier cases.

Second, although Abrams arose under the Sedition Act, Schaeffer and Pierce, decided the same term, involved the Espionage Act. In fact, the defendants in Schaeffer and Pierce were charged with violating the same provi- sions as the defendants in Schenck, Frohwerk, and Debs. And yet Holmes voted to reverse the convictions in both cases, suggesting that his Abrams dissent was not based simply on a belief that the Sedition Act had gone too far.

If Holmes’ shifting votes were not based on the particular legal provisions of each case, were they based on the particular facts? In other words, was it easier to conclude that a clear and present danger was posed by the defendants in Schenck, Frohwerk and Debs than by the defendants in Abrams? This seems doubtful. The fliers in Schenck were unsigned, and the only clue to their origin was a reference to the Socialist party bookstore. Moreover, the fliers urged only that readers should encourage their representatives to repeal the Selective Service Act and that men who opposed the war should register as conscientious objectors. Nowhere did they explicitly encourage unlawful resistance to the draft. Nor does it seem likely the fliers would have had that effect—at least not imminently. Although an unknown number of fliers were mailed to draftees, prosecutors presented no evidence that any of those draftees were influenced by what they read. To the contrary, the handful of recipients who testified said that the flier had no effect on their view of the war or the draft.114

The evidence against Frohwerk was even weaker. The twelve articles that formed the basis of the counts against him were striking primarily for their banality. It is hard to imagine that anyone reading them would have been roused to obstruct the draft or engage in insubordination in the military. Nor, as

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Holmes acknowledged, did the editors make any special effort to reach draftees or soldiers. He also acknowledged that “if the evidence should show that the defendant was a poor man, turning out copy for Gleeser, his employer, at less than a day laborer’s pay, for Gleeser to use or reject as he saw fit, in a newspaper of small circulation, there would be a natural inclination to test every question of law to be found in the record very thoroughly before upholding the very severe penalty imposed.”115 In fact, that is exactly what the evidence showed. And, though the Court did not have before it a bill of exceptions, it did have the transcript of record, which made clear that the prosecution did not present any evidence that “the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied upon by those who sent the paper out.” Moreover, the government did not so much as allude to any such evidence in its brief. In any case, if Holmes was truly concerned about the absence of a bill of exceptions, there was a simple solution. The Court could have ordered the trial court to submit one. Indeed, that is what Frohwerk’s attorneys requested in a motion filed a month before oral argu- ment.116 Yet Holmes showed no inclination to give the defendant the benefit of the doubt or to take other steps that might resolve the uncertainties in the case.

As for Debs, he was at least a major political figure with widespread influence, and he did use language in his Canton speech that was sharply critical of the war and the draft. Still, not even the Justice Department thought he had violated the law. Moreover, his speech was so long and ranged over so many topics, only one of which was the war, that it seems a stretch to say it posed a clear and present danger of obstructing the draft. Nor did the government present any evidence to this effect. The only thing it proved was that draft‐age men were in the crowd, which might be sufficient under a bad tendency test but

hardly seems adequate to establish a clear and present danger.

Now consider Abrams. Unlike in the first three cases, the defendants in Abrams explicitly advocated the very thing that the law guarded against: a strike in the munitions factories. There was no beating around the bush or vague, inferential language. They also directed their message to the very people best positioned to curtail the production of weapons: the workers in the munitions factories. And they directed that message to them while they were on their way to and from those factories. The message itself was a powerful one. The defendants did not appeal primarily to the intellect of their audience, as had Frohwerk. They appealed to the emotions of the Russian workers, arguing that they were “producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.” If any of the four cases presented a clear and present danger, it would seem to be Abrams. And yet Abrams is the only case of the group in which Holmes voted to reverse the convictions. It is therefore difficult to conclude that his shifting votes were based on an evaluation of the danger posed in each case.

There is one final way one might distin- guish Abrams from the earlier cases. Perhaps the difference has less to do with the danger posed by the defendants in each case than with their intent. This is the argument made by Sheldon Novick, one of Holmes’ biographers. Novick argues that Holmes was “stubbornly consistent” in his free speech opinions and that the key to understanding his votes lies in his 1894 article “Privilege, Malice, and Intent.”117

In that brief article, Holmes repeated his general theory that individuals should be held liable for harms that are foreseeable, regardless of intent.118 However, he also argued that, for some types of privileged activities, courts should require more than just foreseeability; they should require specific intent. The reason is because these activities are socially valuable,

HOLMES AND FREE SPEECH 53

and courts should not deter people from engaging in them.

According to Novick, this article explains why Holmes voted the way he did in the Espionage and Sedition Act cases. Novick argues that Holmes always viewed speech as a privileged activity that could not be punished unless specific intent was shown. That intent was present in Schenck, Frohwerk, and Debs, Novick claims, but not in Abrams. Therefore, Holmes was consistently applying his theory when he voted to affirm in the former cases but to reverse in the latter.

There are several problems with this argument. First, although Holmes did claim that certain activities are privileged and can only be punished upon a showing of specific intent, he did not make this claim about speech in general. To the contrary, Holmes recognized a privilege only for expressions of opinion and for certain kinds of factual statements, such as a reference provided by a former employer. But he denied that there was a privilege for false statements about matters of public concern. As noted above, he argued that such statements were subject to a rule of strict liability.119 Therefore, it is unclear whether he would have viewed the statements at issue in the Espionage and Sedition Act as privileged under his theory.

Even if he did, the distinction Novick draws between the Schenck trilogy and Abrams is not persuasive. This is because the evidence of specific intent in the first three cases was no stronger than in Abrams. In Schenck, the only evidence of intent was the fact that the defendants had mailed the fliers to draftees. But as pointed out above, the fliers themselves did not advocate unlawful resis- tance to the draft, so the inference that this is what the defendants intended is not obvious. Frohwerk specifically disclaimed any intent to encourage draft resisters in the only article he wrote that could plausibly have been inter- preted as inciting such resistance. One might argue that this disclaimer was disingenuous, but even so there was no other evidence that

he intended to obstruct the draft. As for Debs, the only evidence of his intent was the fact that he opposed the war and told his audience he could not say all he wanted to. In spite of this paucity of evidence, Holmes deferred to the jury’s finding of intent in each case and explained on several occasions that the Court was powerless to second‐guess those find- ings.120 And yet when it came to Abrams, Holmes had no problem doing just that.

The tone of Holmes’ writing about free speech also undermines Novick’s thesis. Up until the middle of 1919, Holmes almost always spoke about free speech with a casual, dismissive air. When Learned Hand advocat- ed tolerance in the summer of 1918, Holmes replied, “You strike at the sacred right to kill the other fellow when he disagrees.” When an English friend complained about the censorship of war news in 1915, Holmes responded with “a dissertation on the logically indefensible right of free speech.” In Schenck too, Holmes responded to the defendants’ free speech claim somewhat glibly, comparing criticism of the government and the war to a shout of fire in a crowded theatre.

By Abrams, his tone had changed considerably. Instead of trivializing the defendants’ speech, Holmes argued that they had as much right to publish their two leaflets “as the Government has to publish the Constitution of the United States now vainly invoked by them.”121 He also criticized the judge’s handling of the case and the sentences imposed. And he wrote a passionate defense of free speech, arguing that “we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.”122 This was a far cry from his comments the previous summer about killing those who disagree with us or treating speech like any other act we dislike. And it suggests that Holmes had fundamentally changed his attitude toward free speech.

Moreover, that is how it looked to observers at the time. Contrary to Novick’s

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claim, Holmes’ decision in Schenck was not hailed as a victory for free speech. Most people did not pay much attention to it because the defendants were not well known outside Philadelphia. But Debs, decided just a week later, was widely condemned by progressives. Gilbert Roe, who wrote an amicus brief on behalf of Debs, said the opinion in that case set back the First Amendment two centuries, while the San Francisco Examiner called it “a perversion of the Constitution and a most dangerous and vicious invasion of our native and guaranteed liberties.”123 Abrams, on the other hand, was immediately celebrated by prominent liberals such as Herbert Croly, Walter Lippmann, and Roscoe Pound. At the same time, conserva- tives were horrified by it, as illustrated by John Wigmore’s article in the March, 1920, issue of the Illinois Law Review. Wigmore blasted Holmes’ dissent, arguing that it was “shocking in its obtuse indifference to the vital issues at stake in 1918, and . . . ominous in its portent of like indifference to pending and coming issues.”124 This was not the response of someone who viewed Holmes as merely applying a theory of intent. It was the response of someone who believed that Holmes was proposing a radical new ap- proach to free speech.

Finally, Novick’s theory cannot account for Holmes’ dissent in Gitlow, which went further than any of his other opinions in terms of defining the scope of free speech. One might acknowledge that Gitlow is inconsistent with Schenck, Frohwerk, and Debs, but suggest that this inconsistency is irrelevant to the question of whether Holmes changed his mind during 1919. It is relevant, though. For if Holmes’ Gitlow dissent is inconsistent with his earlier opinions, then he did change his mind at some point. Yet there is no reason to think that this change occurred between Abrams and Gitlow, since nothing happened in Holmes’ life during that period to make him rethink his position. Instead, the events that influenced his views on free speech occurred

in the period during which Baltzer, Schenck, Frohwerk, Debs, and Abrams came to the Court.

A Lobbying Campaign

The years 1918 and 1919 were eventful ones for Holmes. In addition to his usual heavy caseload, he wrote his essay on natural law for the Harvard Law Review and put together a collection of pieces for his Collected Legal Papers. These were busy years on a personal level as well. Holmes was the target of an assassination attempt in the spring of 1919 and his wife, Fanny, fell ill that summer and spent most days in bed.125

With respect to Holmes’ personal life, nothing was more important to him at this time than his friendship with a group of young progressives that included Harold Laski, Felix Frankfurter, and the editors of the New Republic. Frankfurter had first met Holmes when he moved to Washington in 1911 to work for the Taft Administration. Carrying a letter of introduction from his former profes- sor John Gray, he called on the Justice shortly after arriving and soon became a regular for Monday afternoon tea.126 He also introduced the Justice to a group of young admirers who gathered at the house in Dupont Circle where Frankfurter lived with other bachelors. Nick- named The House of Truth, it was the center of social and intellectual life for lawyers, journalists, and diplomats in the capital.127

Holmes often stopped in to join the men for dinner or a game of cards on his way home from court.128 He delighted in their enthusi- asm and their earnest intellectual pursuits, which helped him recapture the excitement of his own youth, when he had “twisted the tail of the cosmos” with William James and the other members of the Metaphysical Club.129

In addition to helping him recapture his youth, these men also gave Holmes something he desperately desired: recognition. Because he looms so large now in legal history, it is

HOLMES AND FREE SPEECH 55

difficult to realize that, for much of his time on the Court, Holmes was not particularly well‐ regarded. Critics described him as a “literary feller” who relied too heavily on clever aphorisms, glossed over counterarguments, and provided insufficient guidance to lower courts. These criticisms wounded Holmes, and for a long time he feared he would never receive the recognition he desired. But during the second decade of the twentieth century, his star had grown brighter, primarily because of the young progressives at the House of Truth. Attracted by his willingness to uphold social reforms, they praised him as a paragon of judicial virtue, publishing tributes to him, feting him with parties and dinners, and passing around his opinions like sacred texts. And, though Holmes was not yet the national icon he would later become, his young friends made him feel as though his life’s work had been worthwhile.

Holmes was thus surprisingly susceptible to their influence, which helps to explain his transformation on the issue of free speech. For, during the years 1918 and 1919, these men engaged in an intense, behind‐the‐scenes lobbying effort to change Holmes’ views on free speech. Although some aspects of this lobbying effort have been documented, others have not. In addition, none of the existing accounts have arranged the events in their proper order, so as to demonstrate their cumulative impact and chronological rela- tionship to each other. In this section, therefore, I will present a timeline of the key events, along with an analysis of the effect they had on Holmes’ views. June 16, 1918

The first significant event occurred during the summer of 1918 while Holmes was on his way to his vacation home in Beverly Farms, Massachusetts. Traveling north on the train between New York and Boston, he ran into Learned Hand, then a federal judge for the Southern District of New York. Hand was close to Herbert Croly and the other editors at the New Republic, and he

and Holmes had crossed paths from time to time. So it was natural that they would strike up a conversation and also natural that talk would turn to the issue of free speech. A year earlier, Hand had become the first judge in the country to rule on the constitutionality of the Espionage Act when he heard a challenge to the postmaster’s decision to block the circu- lation of a leftist magazine called the Masses.130 Hand ruled in favor of the magazine, interpreting the Espionage Act narrowly to prohibit only explicit incitements to violate the law. That decision was reversed several months later by the Second Circuit, but Hand was convinced he had been right, not only about his interpretation of the Espionage Act but also about the larger issue of tolerance. And, based on a letter he wrote to Holmes several days later, he raised that issue when the two men met on the train. Holmes was not receptive, arguing that Hand struck “at the sacred right to kill the other fellow when he disagrees,” and Hand was momentarily “silenced.” But feeling that he had given up too easily, he resumed the debate by letter:131

I gave up rather more easily than I now feel disposed about Tolerance on Wednesday. Here I take my stand. Opinions are at best provi- sional hypotheses, incompletely tested. The more they are tested, after the tests are well scrutinized, the more assurance we may assume, but they are never absolutes. So we must be tolerant of opposite opinions or varying opinions by the very fact of our incredulity of our own.

Holmes received Hand’s letter in Beverly Farms and responded the next day:132

Rarely does a letter hit me so exactly where I live as yours, and unless you are spoiling for a fight I agree with it throughout. My only qualification, if any, would be that free speech stands no differently than freedom from

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vaccination. The occasions would be rarer when you cared enough to stop it but if for any reason you did care enough you wouldn’t care a damn for the suggestion that you were acting on a provisional hypothesis and might be wrong. That is the condition of every act.

You tempt me to repeat an apologue that I got off to my wife in front of the statue of Garrison on Common- wealth Avenue, Boston, many years ago. I said—if I were an official person I should say nothing shall induce me to do honor to a man who broke the fundamental condition of social life by bidding the very structure of society perish rather than he not have his way—expressed in terms of morals, to be sure, but still, his way. If I were a son of Garrison I should reply—Fool, not to see that every great reform has seemed to threaten the structure of society, but that society has not perished, because man is a social animal, and with every turn falls into a new pattern like the Kaleidoscope. If I were a philosopher I should say—Fools both, not to see that you are the two blades (conservative and radical) of the shears that cut out the future. But if I were the ironical man in the back of the philosopher’s head I should conclude—Greatest fool of all, Thou—not to see that man’s destiny is to fight. Therefore take thy place on the one side or the other, if with the added grace of knowing that the Enemy is as good a man as thou, so much the better, but kill him if thou Canst. All of which seems in accord with you.

Although Holmes indicated in his letter that he agreed with Hand, a closer reading

casts doubt on that claim. Hand had argued that, because opinions are nothing more than provisional hypotheses, we must be tolerant of conflicting views. Holmes did not deny the provisional nature of opinions: he was as skeptical of the notion of objective truth as anyone. To Holmes, however, that lack of certainty did not necessitate tolerance. “If for any reason you did care enough [to stop freedom of speech],” he had written, “you wouldn’t care a damn for the suggestion that you were acting on a provisional hypothesis and might be wrong. That is the condition of every act.” We are always acting upon a provisional hypothesis, was Holmes’ point. We can never be sure we’re right. But that shouldn’t stop us from acting.

His apologue in front of Garrison’s statue drove this point home. William Lloyd Garri- son was a fervent abolitionist who had opposed all compromise over the issue of slavery in the years leading up the Civil War. Holmes had been an abolitionist himself before the war; he even served as a bodyguard at an anti‐slavery rally in Boston.133 After the war, however, he grew to detest the aboli- tionists, as well as all other ideologues, on the left and the right. Yet strangely, he didn’t lose his taste for battle. He didn’t become the philosopher who thinks both sides are foolish for fighting because neither can know the truth. Instead, he became the ironical man in the back of the philosopher’s head, the man who thinks there’s no choice but to pick a side and fight, even if one might be wrong, even if one might be killed as a result. So Hand’s doubts and insecurities—his incredulity— meant little to Holmes when it came to tolerance. If we feel strongly enough about our beliefs, Holmes thought, we should not hesitate to act upon them, whether that means marching to war, passing laws to stamp out child labor, or suppressing the speech of those who stand in our way. June 25, 1918

Although Holmes was not persuaded by Hand, he was intrigued enough by their

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conversation to mention it in a letter to Harold Laski, who was spending the summer just up the coast in Rockport. “I had a good talk with Judge Hand (Learned) coming on which led to a characteristic and mighty good letter carrying on the talk,” he wrote after arriving in Beverly Farms.134 Then, when Laski visited a few days later, Holmes showed him the letter. Like Hand, Laski was a strong believer in free speech, having written about the benefits of disagreement and discussion in his 1917 book Studies in the Problem of Sovereignty. He responded that Hand had reached the correct conclusion, though for the wrong reasons and without considering all the difficulties involved. His own belief in toleration, he explained, was based on the writing of John Stuart Mill in “On Liberty.” “I mean that there are all kinds of theories, e.g. Christian Science, which seem to me stupid and wrongheaded, but looking at the natural history of such theories I don’t think either their stupidity or wrongheadedness has a sufficient chance of survival to penalise the ideas themselves.”135 The one exception, he added, is when a tyrant comes along who thinks toleration is nonsense and wants to slay all who think differently. If such a tyrant and Hand were the last two people on earth, “how could Hand secure the survival of toleration except by killing him? All of which surely means that there is something in Carlyle’s ultimate question, Can I kill thee or can’st thou kill me?”136

This was typical of Laski, who rarely disagreed with Holmes explicitly, instead couching any difference in their views as trivial and incidental to their agreement on some larger issue. His quotation of the Scottish satirist Thomas Carlyle (“can I kill thee or can’st thou kill me?”) even echoed Holmes’ letter to Hand (“but kill him if thou Canst.”). But Holmes saw through Laski’s disingenuousness and pointed it out to him in a letter the following day: “Just a line to say that I don’t see where your quarrel with Hand is. It rather should be with me if either—but I

don’t see any quarrel.” He then repeated what he said to Hand, arguing that, when we believe in something strongly enough, we fight for it, free speech and tolerance be damned.137

July 12, 1918 That initial exchange about free speech

seems to have spurred Laski to action. For when he returned for another visit ten days later, he brought Holmes a book entitled A Theory of Toleration. Written by a Cam- bridge fellow named A.A. Seaton, the book was not directly about freedom of speech. It was about the struggle for religious freedom in late seventeenth‐century England. Still, the two subjects were closely connected, and most of Seaton’s conclusions applied to both. He argued that forced conformity of religious beliefs had largely failed, producing resent- ment and hypocrisy instead of genuine unity. He also argued that the natural appeal of persecution had diminished over time, as the Enlightenment ushered in an attitude of inquiry and skepticism. But, unlike Hand, Seaton believed that skepticism alone was an insufficient basis for toleration. Even if we cast doubt on long‐accepted beliefs, those who seek to impose them on us may feel strongly enough to take the chance of being wrong. The case for toleration must therefore have a positive aspect, appealing to the dignity of man and the quest for truth. For when “it is grasped that we have not the total sum of truth as a treasure to be guarded with fire and sword, but an infinitesimal portion of it to be increased, if possible, by zealous and humble search, the question assumes a different aspect,” he wrote. “There can hardly be a nobler motive to toleration than the conception of the multitudinous religions of mankind contributing each its quota—infini- tesimal it may be, but precious . . . to some vast synthesis of religious thought, aspiration, and experience at present beyond the limits of our narrow intellectual range.”138

Holmes read the book within a week and was favorably impressed. “I have read it with

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profit and pleasure,” he wrote to Laski. “The writer is rather of the literary school of John Austin in his effort to secure precision at every step—but the gossip of inadequate thought having practical significance always is amusing.”139

November 8, 1918 Although Laski continued to feed

Holmes a diet of progressive literature that summer, none of the books dealt with the issue of free speech. But Laski returned to the subject that fall after Holmes was back in Washington. Noticing that the Court had several Espionage Act cases on its docket, he mentioned them in a letter to Holmes on November 8. “I see that there are some ‘free speech’ cases to listen to so that the next few weeks won’t be without excitement,” he wrote.140

More intriguing than that statement was Laski’s reference a few paragraphs later to Clement Vallandingham, an Ohio politician who had been arrested during the Civil War for a speech critical of the Union cause. In many ways, Vallandingham was a precursor to Eugene Debs: a well‐known political figure who was jailed for speaking out against the government during a controversial war. And, as with Debs, his case had become a cause célèbre, with prominent Democrats petition- ing Lincoln for a pardon. Lincoln declined their request and ordered Vallandingham deported to the Confederacy, a decision that generated another round of controversy. Laski knew all of this because he had read a biography of Lincoln by the British politician Lord Charnwood, which Holmes had men- tioned in a recent letter. Charnwood de- nounced Vallandingham as a dangerous agitator and praised Lincoln’s decision not to pardon him—an assessment Laski strongly disagreed with. “I think Lincoln was dead wrong about Vallandingham despite Charn- wood’s denunciations,” he wrote to Holmes.141 It was a small comment, but, combined with Laski’s reference to the Court’s upcoming cases, it indicates that the

subject of free speech was on his mind and that he was willing to engage Holmes in further discussion about it. November 16, 1918

Around the same time Laski wrote that letter to Holmes, he was also involved in another effort to advance the cause of free speech. The editors of the New Republic, troubled by the government’s persecution of dissenters, had decided to solicit an analysis of the situation from an expert on free speech. And Laski, who was a frequent contributor to the magazine, had an idea about who they should ask. That summer, while helping to edit the Harvard Law Review, he had learned that Zechariah Chafee, a young professor at the law school, was working on an article about the Espionage and Sedition Acts. He therefore suggested that Croly ask Chafee to write a shorter version of that article for the New Republic.142 Croly agreed, and Chafee’s article was published on Novem- ber 16, 1918.

Chafee’s article had two main goals. First, he wanted to show that the First Amendment did not adopt Blackstone’s understanding of free speech, but instead limited government’s power to punish dis- sent both before and after the fact. This was no easy task. In addition to Holmes’ decision in Patterson v. Colorado, many state courts had embraced Blackstone in interpreting their own guarantees of free speech.143 But Chafee ignored these precedents, arguing that the framers never meant to codify Blackstone’s views.144 They had the seen the way the British crown silenced its critics, he claimed, and intended to make such suppression impossible in this country. And when the Federalist party disregarded that intent, passing the Sedition Act of 1798, two of the most influential founding fathers, Jefferson and Madison, were quick to cry foul.

In addition to challenging Blackstone, Chafee also wanted to elucidate the purpose of free speech. His argument on this point relied

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heavily on the writing of Milton and Mill. The purpose of free speech, he wrote, is the discovery and spread of truth, which “is possible only through absolutely unlimited discussion, for . . . once force is thrown into the argument, it becomes a matter of chance whether it is thrown on the false side or the true, and truth loses all its natural advan- tages.”145 This did not mean that speech could never be punished. Chafee was a pragmatist who acknowledged that “there are other purposes of government, such as order, the training of the young, protection against external aggression.” Freedom of speech sometimes conflicts with these interests, he noted, and when it does the competing interests must be balanced against each other. But “freedom of speech ought to weigh very heavily in the scale.”146

Did the Espionage and Sedition Acts get the balance right? Chafee argued that the 1917 Espionage Act reached an acceptable balance because it was closely linked to military operations. As long as the law was applied only to speakers who expressly advocated unlawful conduct, as Hand had argued in Masses, it was within constitutional bounds. But the 1918 Sedition Act did not get the balance right. That act made it a crime to say almost anything against the war or even to make the case for peace. This was a grievous mistake, Chafee argued. “The pacifists and Socialists are wrong now, but they may be right the next time,” he wrote. “The only way to find out whether a war is unjust is to let people say so.”147

Chafee did not mention Holmes in his article. But, because Holmes had written Patterson v. Colorado, the article was in large part an attack on his views. And it appeared in one of the few publications Holmes actually read. In fact, Holmes was an enthusiastic supporter of The New Republic and the men who edited it. He had read Croly’s second book, The Progressive Democracy, when it was published in 1913 and wrote him a long letter filled with praise.148 He regarded Walter

Lippmann, another editor, as “a monstrous clever lad,”149 and Frances Hackett, the magazine’s literary editor, as a genius.150 So what did he think when these same men published an article assailing his views on free speech?

No one knows. There is no mention of the article in any of Holmes’ surviving letters, which might suggest he never saw it. However, that seems unlikely. Based on his correspondence during this time, Holmes read the New Republic faithfully. And, even if he skipped an issue, it seems likely that Laski, Frankfurter, or one of his other New Republic friends would have called it to his attention. Moreover, although Holmes did not comment on the article, he did embrace its argument about Blackstone three months later in Schenck. December 3, 1918

Two weeks after Chafee’s article was published, Holmes came under pressure again. In early December, Justice McKenna circulated his majority opinion in Baltzer, the first of the Espionage Act cases to come before the Court.151 It is not clear how Holmes voted at the conference. But Brandeis appar- ently had concerns about the outcome, for on December 3 he visited Holmes at home and urged him to write a dissent. As Holmes put it in a letter to Laski, “A whirlwind struck me in the middle of the last sentence. It has taken the wind out of me, esp. as when I can get calm I am catspawned by Brandeis to do another dissent on burning themes—and half an hour ago I was at peace!”152

As discussed earlier, Holmes gave in to Brandeis’ request and wrote a dissent in Baltzer. It was the second time in less than eight months Brandeis had persuaded Holmes to rule in favor of a party raising free speech claims—the first was Toledo Newspaper the previous spring. And although Holmes’ opinions in both cases were narrow and not based directly on free speech, they show his willingness to take seriously the arguments of his friends.

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February 1919 In early February, as Holmes prepared

to write the opinions in Schenck, Frohwerk and Debs, Laski suggested that he reread “On Liberty” by John Stuart Mill. It is unclear exactly how this recommendation came about—whether as part of a discussion about the Espionage Act or in some other context. But it is clear that Holmes took Laski up on his suggestion because he mentioned it in a letter on February 28. Describing the books he had read earlier in the month, he wrote, “and led by what you have said, I reread Mill on Liberty—fine old sportsman—Mill.”153

Like Hand, Mill’s defense of free speech was grounded in the pursuit of truth and the fallibility of human judgment. Only by assuming we are infallible, he argued, can we justify the suppression of opinions we think false.154 Unlike Hand, however, Mill anticipated Holmes’ objection, which was that, even though we are fallible, even though we can never be certain of the truth, we must still act. That was undeniable, Mill conceded. We must act, and we must assume, for the purpose of acting, that what we believe is true. But that does not mean we can assume our opinions are true for the purpose of suppress- ing speech. Just the opposite, in fact. For it is only because our opinions are open to challenge that we are justified in assuming their truth for purposes of action. “If even the Newtonian philosophy were not permitted to be questioned, mankind could not feel as complete assurance of its truth as they now do,” Mill wrote. “The beliefs which we have most warrant for have no safeguard to rest on but a standing invitation to the whole world to prove them unfounded.”155

This was a powerful argument—and one that Holmes would adopt almost verbatim nine months later in his Abrams dissent. For now, however, it appeared to have little influence on him. Despite articulating the clear and present danger test in Schenck, he did not actually apply that test to the facts of

the case. Moreover, as discussed earlier, he seemed to abandon that standard in both Frohwerk and Debs and revert back to the bad tendency test. March 18, 1919

Although it is not clear whether Holmes and Laski discussed the Espionage Act cases while they were pending, it seems likely that they at least mentioned them. For, after the decisions in Schenck, Frohwerk, and Debs were issued, Holmes sent copies of them unsolicited to Laski. There is more than a hint of defensiveness in the accompanying letter, in which Holmes stated that “he greatly regretted having to write [the decisions]— and (between ourselves) that the Government pressed them to a hearing.”156 He also explained that he knew “donkeys and knaves would represent us as concurring in the condemnation of Debs because he was a dangerous agitator.” But on the question of law that was before the Court, he added, “I could not doubt.”

Laski responded two days later in typically diplomatic fashion. “I read your three opinions with great care and though I say it with deep regret they are very convincing,” he wrote. “The point, I take it, is that to act otherwise would be simply to substitute judicial discretion for executive indiscretion with the presumption of knowledge against you.”157 But, although Laski did not dispute the results Holmes had reached, he did express his opposition to the prosecution of the defendants. “I think you would agree that none of the accused ought to have been prosecuted; but since they have been and the statute is there the only remedy lies in the field of pardon.” He also expressed uneasiness about Holmes’ willingness to defer to the executive in times of war. “Your analogy of a cry of fire in a theatre is, I think, excellent, though in the remarks you make in the Schenck case I am not sure that I should not have liked the line to be drawn a little tighter about executive discretion. The Espionage Act tends to mean the prosecution of all one’s

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opponents who are unimportant enough not to arise [sic] public opinion.” March 31, 1918

Holmes does not appear to have replied to Laski’s criticism, but two weeks later he received another letter about his decisions. It was from Hand, who used the Court’s decisions as an opportunity to renew his debate with Holmes from the previous summer. Like Laski, Hand chose not to dispute the outcomes reached by the Court. Whether this was because he agreed with those outcomes or was simply being respect- ful is unclear. But he did encourage Holmes to think harder about the legal rule that lay behind the decisions, suggesting that it was not supported by history. He also questioned Holmes’ reliance upon the jury’s finding of intent in Debs, arguing that such a focus on motive would chill valuable speech.158

Holmes was busy when Hand’s letter arrived and could not give it the attention it required. The result showed. When he wrote back a few days later, it was clear that he did not understand the substance of Hand’s test or how it differed from his own. “Since your letter came I have been so busy propagating new sophistries that I haven’t had time to defend the old ones. And now I am afraid that I don’t quite get your point.”159 Holmes then explained that he had said nothing about intent “except to note that under the instruc- tions the jury must be taken to have found that Debs’s speech was intended to obstruct and tended to obstruct—and except further that evidence was held admissible as bearing on intent.” He also argued that “words may constitute an obstruction within the statute, even without proof that the obstruction was successful to the point of preventing recruit- ing. That I at least think plain.”

Hand was discouraged after receiving this letter and did not engage Holmes in further discussion about free speech. As he explained to Chafee later, “I kept up my hopes until the Debs case and when the whole court affirmed that without laying down anything

like what I thought was the rule, I confess I began to wonder whether I had not got some kind of wrong squint on the subject.”160

May 3, 1919 Like Laski and Hand, the editors of the

New Republic initially chose not to challenge the outcome in Debs or the other cases.161 But one month later, they published a scathing critique of the decision by Ernst Freund, a professor at the University of Chicago Law School.162 Freund faulted Holmes for relying upon the jury’s finding that Debs had intended to obstruct the draft. Like Hand, Freund thought this set a dangerous precedent. Not only would it empower juries to punish speakers they disagreed with; it would make it impossible for speakers to know ahead of time whether they could be punished for their words. And that, Freund argued, would chill all but the blandest political discussion. “To know what you may do and what you may not do, and how far you may go in criticism, is the first condition of political liberty,” he wrote. “To be permitted to agitate at your own peril, subject to a jury’s guessing at motive, tendency and possible effect, makes the right of free speech a precarious gift.”163

Freund also disputed the jury’s finding that Debs’s speech had in fact been likely to cause harm. After all, Debs had not directly urged his audience to obstruct the draft; at most, he had indirectly encouraged them to do so by criticizing the war. And the likelihood that this encouragement would cause actual obstruction was “practically nil.” “Yet Justice Holmes would make us believe that the relation of the speech to obstruction is like that of the shout of Fire! in a crowded theatre to the resulting panic! Surely implied provo- cation in connection with political offenses is an unsafe doctrine if it has to be made plausible by a parallel so manifestly inappropriate.”164

Holmes was stung by the article and responded by writing a letter to Croly, the magazine’s editor.165 Like his earlier letter to Laski, it was both defensive and defiant. He

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hated having to write the Debs opinion, he insisted. Had he been on the jury, he likely would have voted for acquittal, and he didn’t understand why the government had pressed the case to a hearing. But as long as there was at least some evidence to support the jury’s verdict, he could not overturn that verdict simply because he personally might have viewed that evidence differently. As for the constitutionality of the Espionage Act, he explained, that question had already been put to rest in Schenck. Of course, he neglected to add that he was the one who had put it to rest; he cited his Schenck opinion as if it were the decree of some superior tribunal he had nothing to do with. At the same time, he took pains to downplay the implications of both Debs and Schenck, stating that he had only ruled on the “clauses under consideration.” He also signaled a new appreciation for free speech, declaring that, regardless of what the law dictated, he personally favored the “aeration of all effervescing convictions”— not because it promoted the search for truth or self‐government, as Hand and Chafee had argued, but because “there is no way so quick for letting them get flat.”

After writing this letter, Holmes had second thoughts about sending it. The Court had recently received the petition for review in Abrams, and he was apparently worried about expressing his views so candidly on an issue that was likely to come before the Court again. While debating what to do, he received a letter from Laski asking if he had read Freund’s piece and was “at all influenced by his analysis.”166 This apparently gave Holmes an idea. Instead of sending his letter to Croly, he sent it to Laski. “Yesterday I wrote the within and decided not to send it as some themes may become burning,” he wrote. “Instead I trust it confidentially to you and it will answer your inquiry about Freund. I thought it poor stuff—for reasons indicated within.”167

Laski did not respond to Holmes’ letter, and the two friends do not appear to have

mentioned Freund’s article in writing again. But Learned Hand did. Reading the piece in New York, he saw Freund’s analysis as a vindication of his own views and wrote to thank its author. “Your article in last week’s ‘New Republic’ was a great comfort to me,” he wrote Freund on May 7. “You express my own opinion much better than I could myself and in your distinguished company I shall take heart of grace to believe I am right, even with the whole Supreme Court the other way.”168 Hand also made clear that he had been trying to persuade Holmes to adopt a more expansive view of free speech. “I own I was chagrined that Justice Holmes did not line up on our side; indeed, I have so far been unable to make him see that he and we have any real differences, and that puzzles me a little.” Summer 1919

The summer of 1919 was difficult for Holmes. In early May, police discovered a bomb plot against him and thirty‐five other prominent government officials and business leaders.169 Then, in June, just before he left Washington for Beverly Farms, a bomb exploded in front of the house of Attorney General A. Mitchell Palmer, leading police to station an officer near Holmes’ front door.170

And finally, on the train ride north, his wife had fallen ill from the heat and fatigue and spent most of the summer confined to her bed.171

In light of these circumstances, Holmes spent much of his summer with Laski, who was once again staying just up the coast in Rockport. And Laski used the opportunity to continue feeding Holmes a steady diet of progressive literature, much of it with at least a tangential connection to free speech. In May, he gave Holmes a biography of Francis Place, the nineteenth‐century British social reformer who had fought against the stamp tax on newspapers.172 In July, he passed along The History of English Rationalism in the Nineteenth Century, an account of the triumph of science and logic over religious

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dogma.173 And, in August, he presented him with The History of English Democratic Ideas in the Seventeenth Century, a chronicle of the emergence of political liberalism during and after the English Civil Wars.174

More important than these books was Chafee’s article in the Harvard Law Review, which Laski also forwarded to Holmes.175

Entitled “Freedom of Speech in War Time,” the article repeated many of the arguments Chafee had made in The New Republic the previous fall, including his claim that the framers had rejected the Blackstonian view of free speech.176 But Chafee was no longer content merely to discredit Blackstone. As he pointed out, Holmes had already done that in Schenck, though not before his earlier endorsement “had had considerable influ- ence.”177 What Chafee cared about now was filling the void left in Blackstone’s wake. Many judges, he noted, had interpreted the First Amendment to protect the “use” of speech but not its “abuse,” “liberty” of the press but not “license.”178 Those formulas, however, gave little guidance to judges and speakers about what speech was protected. “Justice Holmes in his Espionage Act cases had a magnificent opportunity” to clarify the uncertainty, Chafee wrote. “He, we hoped, would concentrate his great abilities on fixing the line.”179 Instead, like other judges, Holmes had taken aim at easy targets, such as the man who falsely shouts fire in a crowded theatre and causes a panic. “How about the man who gets up in a theatre between the acts and informs the audience honestly but perhaps mistakenly that the fire exits are too few or locked?” Chafee asked. “He is a much closer parallel to Schenck or Debs. How about James Russell Lowell when he counseled not murder, but the cessation of murder, his name for war? The question whether such perplexing cases are within the First Amendment or not cannot be solved by the multiplication of obvious examples, but only by the development of a rational

principle to mark the limits of constitutional protection.”180

In private conversations, Chafee made clear that the principle he favored was the one proposed by Hand in Masses, which protected all speech except explicit incitement to break the law.181 But Hand’s test had been rejected by the appeals court and ignored by the Supreme Court. So instead Chafee embraced the clear and present danger test of Schenck, arguing that it was now the standard that governed all Espionage Act cases. There was only one problem. Holmes had not clearly indicated that the phrase “clear and present danger” was intended as a substitute for “bad tendency.” Indeed, as discussed above, there was reason to think he was not introducing a new test at all, but was simply using a different formula to describe the old test. But Chafee ignored that possibility and portrayed “clear and present danger” as a new standard designed to protect more speech than the old “bad tendency” test.

Chafee also criticized the Court’s judg- ment in Debs. If the Supreme Court had applied the clear and present danger test to Debs’s speech, he argued, “it is hard to see how he could have been held guilty.”182 It was true that a jury had convicted him, and equally true that the Supreme Court ordinarily does not second‐guess a jury’s factual conclusions. But the judge had not instructed the jury that a “clear and present danger” was necessary. In addition, the judge had allowed the jury to infer that Debs intended to obstruct the draft from the mere fact that he gave the speech. These were serious mistakes that had to be avoided in the future, Chafee argued. “If the Supreme Court test is to mean anything more than a passing observation, it must be used to upset convictions for words when the trial judge did not insist that they must create ‘a clear and present danger’ of overt acts.”183

As David Rabban has shown, Chafee’s argument was inspired, if somewhat disin- genuous.184 He had seized upon an isolated phrase in Schenck—a phrase used casually,

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almost carelessly, by Holmes—and held it out as announcing a new standard in First Amendment law. Then, he had used that new standard to undercut one of the very opinions from which it ostensibly derived. Where most progressives had looked at Schenck, Frohwerk, and Debs and seen only disaster, Chafee had seen opportunity. As Hand put it to him in a letter two years later, “You have, I dare say, done well to take what has fallen from Heaven and insist that it is manna rather than to set up any independent solution.”185

In addition to turning Holmes’ words against him, Chafee also faulted the Justice for not paying adequate attention to the values underlying the First Amendment. “It is regrettable,” he wrote, “that Justice Holmes did nothing to emphasize the social interest behind free speech, and show the need of balancing even in war time.”186 Indeed, Chafee noted, Holmes’ opinion in Schenck—with its assertion that “many things that might be said in time of peace . . . will not be endured so long as men fight”—suggested that he would “sanction any restriction of speech that has military force behind it, and reminds us that the Justice used to say when he was young ‘that truth was the majority vote of that nation that could lick all others.’ His liberalism seems held in abeyance by his belief in the relativity of values.”187

When Laski read Chafee’s article that summer, he sent a copy to Holmes and then had an idea that was almost as inspired as Chafee’s article. Chafee was scheduled to spend a weekend with him in Rockport at the end of July. Why not invite Holmes to tea that same weekend so that Chafee might make his argument in person? He broached the possibility with Holmes, who seemed open to the idea. Then, three days before Chafee was scheduled to arrive, Laski wrote to inform him of the plan:

You won’t forget that you are coming down on Saturday for the week‐end. 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. I’ve read it twice, and I’ll go to the stake for every word. Bless you for it.188

The meeting took place as planned. According to a letter Chafee wrote to Charles Amidon, a federal judge in North Dakota, Holmes again indicated that he regretted having to write the decision in Debs and likely would have voted for acquittal if he were on the jury.189 Chafee also noted that Holmes seemed “inclined to allow a very wide latitude” to the government when it came to speech in time of war. Finally, he noted that Holmes did not think it possible to draw a clear line between protected and unprotected speech “but simply to indicate cases on the one side or the other of the line.” “While I do not anticipate myself that any hard and fast line could be drawn, his failure, it seems to me, is the omission to state the principles by which decisions are to be placed on one side or the other.” September 1919

Before the summer ended, Laski sent Holmes three additional books that influenced the Justice’s thinking on free speech.

The first was Essays on Freethinking and Plainspeaking by Leslie Stephen. A former clergyman turned agnostic, Stephen chastised those liberal but diffident clerics who tried to reconcile their hard‐earned skepticism with the lazy fictions of faith. Instead of openly challenging antiquated Church doctrines, they “waste their power in an attempt to square circles.”190 There is enough deceit and hypocrisy in the world without such misguided attempts at harmony, he argued. “Let us think freely and speak plainly, and we shall have the highest satisfaction that man can enjoy—the con- sciousness that we have done what little lies in ourselves to do for the maintenance of the truths on which the moral improvement and the happiness of our race depend.”191

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Those familiar with Holmes’ Abrams dissent will notice a familiar phrase in this paragraph. Leslie’s reference to the squaring of circles would reappear less than two months later in the following line: “To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle.”192

The second book was a biography of Adam Smith, the Scottish economist and founder of free market capitalism. Holmes was well acquainted with Smith, having read The Wealth of Nations years earlier. But the biography, written by the British journalist Francis Hirst,193 influenced him in two respects. First, it emphasized the extent to which Smith believed not just in economic liberty, but in political liberty, including free speech. Second, Hirst disputed the revision- ists who had tried to invoke Smith’s name in support of governmental regulation of the economy. Although Smith accepted the need for some regulation, Hirst argued, he believed strongly that a policy of “free trade” would produce the greatest good for the greatest number. “The Wealth of Nations is a forest of full‐grown arguments for free trade,” Hirst wrote.194 “Smith’s name can no more be dissociated from free trade than Homer’s from the siege of Troy.” In all, Hirst used the phrase “free trade” more than twenty times in his book, including as a chapter title. So it is not surprising that Holmes, when casting about for a metaphor to explain the value of open debate, should seize upon the idea of free trade, or as he put it, “free trade in ideas.”

Finally, there was The Decline of Liberty in England, written by E.S.P. Hay- nes, a British lawyer and author. Published in 1916, Haynes’s book argued that individual freedom in England was being chipped away by growing state interference and an infatua- tion with German efficiency. Haynes focused most of his attention on social and moral issues, but he also despaired over the future of free speech. Libel suits were on the rise, censorship was spreading, and a mob mental-

ity was overtaking the country. Worse, judges had abdicated their responsibility and were deferring “to the wishes of the Executive without much attention to other consider- ations.”195 Liberty of speech in England was still greater than anywhere else, including the United States, Haynes argued. But if judges failed to rein in the “unchecked power of the Executive” and if the public did not jealously guard this vital privilege, it would be swallowed up by the movement toward national militarism “and even more by an increasingly tyrannical collectivism which would destroy the freedom of the individual to discuss any problems except from the collectivist point of view.”196

Haynes’s book was not a work of serious political theory like Mill’s On Liberty. It was a polemic that Holmes found both verbose and obscure. Still, it made a strong impression on him. “The whole collectivist tendency seems to be toward underrating or forgetting the safeguards in bills of rights that had to be fought for in their day and that still are worth fighting for,” he wrote to Pollock shortly after reading the book. Then, foreshadowing the dissent he would write just a month later, he added, “We have been so comfortable so long that we are apt to take it for granted that everything will be all right without our taking any trouble. All of which is but a paraphrase of eternal vigilance is the price of freedom.”197

Defending His Friends

The lobbying effort targeted at Holmes lasted nearly a year and a half and involved many of his closest friends. Although it does not appear to have been consciously orches- trated, there is some evidence of coordination between various participants, such as Laski and Chafee. There is also evidence that the effort had an effect, as Holmes gradually began to distance himself from his earlier views and opinions and expressed a new appreciation for free speech. But the effort

66 JOURNAL OF SUPREME COURT HISTORY

might never have succeeded were it not for another development that made the issue of free speech more personal to Holmes than it had previously been.

The year after World War I was bleak and divisive in the United States. After the initial wave of relief and euphoria, the country plunged into a state of suspicion and anxiety. Congress allocated $500,000 for an investi- gation of seditious activities,198 the Attorney General called for the enactment of a peace‐ time Espionage Act,199 and a congressional committee released a list of sixty‐two radicals who were said to be enemies of the state.200

The list included such respected figures as Jane Addams, the social reformer from Chicago; Charles Beard, the Columbia Uni- versity historian; and Frederic Howe, Com- missioner of Immigration at Ellis Island. But the people on the list weren’t the only ones under suspicion. Laski and Frankfurter also found themselves under attack for their views and the actions they took on behalf of the progressive cause.

For Laski, the trouble began in the spring of 1918 when a complaint was filed against him at Radcliffe College, where he was teaching a course on economics. According to the mother of one of his students, Laski was a Bolshevist sympathizer who was indoctri- nating the girls in socialist theory.201 Officials at Radcliffe forwarded the complaint to Harvard President A. Lawrence Lowell, who opened a file on the young instructor that would eventually include nearly 100 letters from angry parents and alumni. Around the same time, a Harvard professor named Edwin H. Hall began telling anyone who would listen that Laski was a “poisonous influence” who was spreading leftist propa- ganda on campus.202 Hall’s whispering campaign was successful enough that in January 1919 Laski offered to resign his position on the Harvard Law Review as a way to deflect criticism from the law school.203

But the situation only worsened that spring when he took part in a strike at the Lawrence

textile mills and published Authority in the Modern State, which argued that workers should be given control over all major manufacturing questions, from the length of the workday to the hourly wage to the method and rate of production.204

Frankfurter’s troubles began in 1917 when he got tangled up in two controversies as a result of his work on the President’s Mediation Commission, which was charged with resolving labor disputes during the war. The first was an incident known as the Bisbee Deportation.205 During the copper strikes in Arizona, the town of Bisbee had emerged as a hot spot for labor strife, with widespread strikes and conflicts among various union factions. Amid rumors of violence, local officials asked the federal government to send in troops to keep the peace. When the government denied this request, officials took matters into their own hands. Leading a massive vigilante force, they rounded up nearly 1,200 strikers, loaded them onto cattle cars, and hauled them into the middle of the New Mexico desert, where they were stranded for two days without food or water. The Army eventually rescued the strikers and moved them to a nearby town for safety, but the incident became a rallying cry for progres- sives. And, although it was technically outside the Commission’s mandate, Frankfurter per- suaded the group to visit Bisbee and conduct a full investigation. He then drafted a report declaring the actions of local officials “wholly illegal” and recommending a process for resolving similar disputes in the future.206

The second controversy stemmed from the case of Tom Mooney, a California labor leader who had been sentenced to death for allegedly planting a bomb that killed ten people during a 1916 Preparedness Day march.207 After the trial, defense attorneys uncovered evidence suggesting that the primary witness against Mooney had perjured himself. But, because they had already appealed to the California Supreme Court, the trial judge ruled that he lacked jurisdiction

HOLMES AND FREE SPEECH 67

to reopen the matter. At the same time, the state supreme court indicated that it would only consider evidence that had been intro- duced at trial. This put Mooney in an impossible situation, with evidence under- mining his conviction yet no court willing to hear it. The situation also proved embarrass- ing for the Wilson Administration, which had gone to war to “make the world safe for democracy” yet now appeared unable to secure justice at home. Thus, as part of his work for the Commission, Frankfurter inves- tigated the case and wrote a report on his findings. Although he stopped short of saying that Mooney was innocent, he did conclude that the case was a miscarriage of justice that had weakened the country’s credibility with its allies. To remedy the injustice, he proposed that Wilson urge the governor of California to grant Mooney a retrial—advice that Wilson followed, with mixed results. Instead of a new trial, the governor commuted Mooney’s sentence to life in prison.208

Made public within a few months of each other, the Bisbee and Mooney reports thrust

Frankfurter into the national spotlight. And, although progressives cheered his efforts, conservatives questioned his integrity, his motives, and his patriotism. The most damn- ing criticism came from Theodore Roosevelt, whose close friend, the copper magnate Jack Greenway, had spearheaded the Bisbee de- portation. In a letter published in the Boston Herald, Roosevelt called the Bisbee report “as thoroughly misleading a document as could be written on the subject.” He also accused Frankfurter of “excusing men precisely like the Bolsheviki in Russia, who are murderers and encouragers of murder, who are traitors to their allies, to democracy and to civilization, as well as to the United States.”209

The attacks on Frankfurter continued when he accepted a job as chairman of the War Labor Policies Board, a position that required him to impose progressive labor standards, such as the eight‐hour workday, on some of the most recalcitrant industries in the country.210 Frankfurter supported these stand- ards, believing they would ultimately boost productivity, but the captains of industry

In July 1917, 2,000 vigilantes illegally deported about 1,200 striking copper mine workers from the town of Bisbee, Arizona. They forced them into cattle cars and transported them without food or water to a desert in New Mexico, where they were told not to come back.

68 JOURNAL OF SUPREME COURT HISTORY

viewed them as the first step to communism. When the chairman of U.S. Steel, Elbert H. Gary, met with Frankfurter in Washington, he complained that a shortened workday would destroy his company. He then spread a rumor that Frankfurter had threatened a federal takeover of the steel mills.211

By the end of the war, then, Frankfurter was a controversial figure, closely identified with some of the most radical causes in the country. And the conservatives at Harvard were not pleased. In the spring of 1919, a group of influential alumni demanded that Dean Roscoe Pound remove Frankfurter from the faculty.212 When Pound refused, they demanded that he be removed. Distraught over the situation, Pound warned Frankfurter that their future at the school looked grim.213

But Frankfurter was in Paris attending the peace conference and could not defend himself in person. So Pound explained the situation to Brandeis, who apparently shared the news with Holmes.214

“Every once in a while, faintly and vaguely as to you, a little more distinctly as to Frankfurter, I hear that you are dangerous men,” Holmes wrote to Laski in April 1919. “What does it mean? . . . Have your writings as to sovereignty led people who don’t read them to believe that you were opposed to law and order or what?”215

Laski downplayed the attacks on himself, responding that, although he had enemies, they had not yet made his life difficult. But there was a movement afoot to run Frankfurter and Pound out of Harvard, he explained. Exactly who was behind the effort Laski didn’t know, though he suspected it was the work of Richard Hale and Thomas Perkins, two prominent Boston lawyers with close ties to the school. “Hale is abominable,” he told Holmes. “He actually sent for the editor of the Law Review early in the year and warned him against Felix.”216 Laski was also unsure about the motive behind the campaign, though he suspected it was anti‐Semitism. In any case, he said, Pound and his allies were taking a

beating and could use some help. “If you ever get a chance to drop a hint to Hale or Perkins, you would do us all a great service.”

Though Holmes expressed concern about the situation, he did not initially take steps to help. So Laski wrote again: “The real truth is that there’s a great fight on as to the future of the School and the older Tories are eager to make the place unbearable for Pound. He is a very great Dean and the students worship him and sooner or later the Law School Alumni Association has to step in and tell the world what Pound is counting for in scholarship and prevent this idle insistence on a status quo which has already lost its status.”217

Holmes, as Laski knew, was president of the Law School Alumni Association. So Laski’s insistence that the association would have to step in was essentially a plea for Holmes to step in. And this time, Holmes got the message. He had just received notice of the Association’s next meeting, he informed Laski two days later. “They ask for sugges- tions. Could I say anything to them? Answer quick. The letter comes from F.W. Grinnell, partner of Richard Hale.”218

Laski wasted no time taking advantage of this response. “Only one word in very partial reply to a letter worth its weight in gold,” he wrote back the next day. “If the Association would, te movente, record its appreciation of the way Pound kept the School going during the war it would help marvelously. That, bien entendu, if you felt so inclined. My love and great gratitude for that letter.”219

So that’s what Holmes did. He sent a note to Grinnell repeating exactly what Laski said. “Your letter invites suggestion and I venture one,” he wrote. “I have a very strong conviction of the value and importance of Pound who I think has done much to maintain the superlative reputation of the School. If it were possible to pass a resolution expressing our appreciation of the way in which he has kept the School going during the war, or giving him encouragement in such form as is deemed best I should be much gratified.

HOLMES AND FREE SPEECH 69

Perhaps you will call this to the attention of the meeting.”220

When Laski received a copy of this note from Holmes, he was elated. “That is a most generous letter of yours about Pound and on his account, as well as my own, I am very grateful,” he wrote.221 Pound was also pleased. Grinnell had shown him the letter, he wrote to Holmes, and it was “worth reams of resolutions.” But he was still anxious about Frankfurter. “Unhappily most people here- about seem to be chiefly concerned to push Frankfurter out of the school. If such a thing were to happen, it would be nothing short of a calamity. What I fear is that he will be made uncomfortable and will go.”222

After discussing the matter with Bran- deis, Holmes wrote another letter—this time to President Lowell: “I have a very strong feeling that Pound and in his place Frankfurter have and impart the ferment which is more valuable than an endowment and makes a Law School a focus of life.”223 He also suggested that Pound be given an honorary degree from Harvard, “as I believe he has from various other universities. He is one of the very few men whose work on legal subjects is referred to by Continental writers.”

That seemed to do the trick. Lowell sent back an encouraging response, which Holmes forwarded to Laski with permission to show to Pound. “I have the notion that Pound thought Lowell’s attitude to be different from this, and it may cheer him up,” he wrote.224

For the next several months, the situation at Harvard remained stable. But that fall, matters heated up again when Laski came out in support of a strike by the Boston police force. In an interview with the Harvard Crimson, he argued that every worker had the right to affiliate with a union, no matter who his employer or what his vocation.225

Then, in a speech to the families of the striking police on October 15, he blamed Boston Police Commissioner Edwin Curtis for the situation and declared that labor would “never surrender.”226

The reaction to these comments was swift and severe. In a letter to the Boston Herald, Professor Hall accused Laski of glorifying Bolshevism and attempting to intimidate those who disagreed with his radical doc- trines.227 The Boston Evening Transcript also denounced the speech. “It is not too much to ask,” the newspaper wrote, “whether the Harold J. Laski who addressed last night’s meeting at Fay Hall is an instructor in or lecturer upon American Government or Soviet Government. The parents of the sons entrusted to his tutelage are entitled to know. The followers from Maine to California of straight Americanism will, we think, insist upon knowing.”228

As it turns out, they did want to know. The university was in the midst of a fifteen‐ million‐dollar fundraising campaign, and Lowell received dozens of letters from alumni who threatened to withhold their contribu- tions unless Laski was fired.229 Lowell refused to give in to the pressure, even though he estimated it cost the school three hundred thousand dollars. But the Board of Overseers took matters into its own hands, scheduling a meeting for October 27 to consider whether Laski should be fired.230

In the meantime, the Court heard argu- ments in Abrams on October 21 and 22. On the second day of arguments, something happened that has never before been revealed and that sheds new light on Holmes’ actions that fall. Furious not only with the attacks on Laski but with the general atmosphere of intolerance in the country, Frankfurter paid a visit to Ellery Sedgwick, editor of The Atlantic Monthly and member of the Harvard Board of Trustees. As Frankfurter described it in a newly discovered letter to his fiancée, “I bearded the great editorial lion in his den yesterday—Ellery Sedgwick to shake him to some plain speaking. . . . He wants to be a liberal and is considerably one.”231 In fact, Sedgwick had agreed to “print a blast on tolerance” if Frankfurter could solicit one from “somebody like Holmes or [Charles

70 JOURNAL OF SUPREME COURT HISTORY

Norton] Eliot”—in other words, Sedgwick had said, “somebody who counts.”232 Frank- furter responded that “everybody counts who has courage & speaks sense,” but he was apparently intrigued by Sedgwick’s proposal because over the next week both he and Laski wrote Holmes asking if he could write such an article. Their letters to Holmes have not survived, but his responses have, and they make clear not only that the young men asked Holmes to write, but that their request made an impression on him.233 Here is Holmes’ response to Laski:

I didn’t till this moment read your letter correctly and realize that it asked if I would write. I thought it expressed a regret but assumed that I couldn’t—I can’t—I am too much beleaguered with duties. I infer that you have had trouble, I hope not serious, because of your criticism of Curtis. I gather from what I have seen that you didn’t uphold the strike (which I think impossible) but pitched into Curtis’s behavior, of which I know little but which I should think was at least open to discussion. I fear that we have less freedom of speech here than they have in England. Little as I believe in it as a theory I hope I would die for it and I go as far as anyone whom I regard as competent to form an opinion, in favor of it. Of course when I say I don’t believe in it as a theory I don’t mean that I do believe in the opposite as a theory. But on their premises it seems to me logical in the Catholic Church to kill heretics and the Puritans to whip Quakers—and I see nothing more wrong in it from our ultimate stand- ards than I do in killing Germans when we are at war. When you are thoroughly convinced that you are right—wholeheartedly desire an

end—and have no doubt of your power to accomplish it—I see noth- ing but municipal regulations to interfere with your using your power to accomplish it. The sacredness of human life is a formula that is good only inside a system of law—and so of the rest—all of which apart from its banalité I fear seems cold talk if you have been made to feel popular displeasure. I should not be cold about that—nor do I in any way shrink from saying what I think—but I can’t spare the energy necessary to deal with extra legal themes.234

Of all the letters Holmes wrote during this period, none captures so clearly the extent to which he was wrestling with the issue of free speech. Indeed, with its internal contradic- tions and sudden swerves of direction, his letter to Laski suggests a man on the verge of a momentous decision, vacillating between the dictates of reason and the pull of emotion. On the one hand was the logic of persecution, which still had a powerful hold on him. From a moral standpoint, he could see no difference between the punishing of dissent- ers and the killing of Germans during the war. Both rested on the same “justifiable self‐ preference” he had identified as long ago as The Common Law.”235 On the other hand, Holmes himself had taught that logic wasn’t the only aspect of the law. There was also “experience,” “the felt necessities of the time,” “even the prejudices which judges share with their fellow‐men.”236 And it was those aspects of the law that seemed most relevant to him now. For what had been merely an abstract question for Holmes over the past year was, suddenly, concrete and personal. The face of free speech was no longer Eugene Debs, the dangerous socialist agitator. It was his good friend Harold Laski, and Holmes’ views shifted accordingly. He now declared himself willing to die for it. Moreover, he seemed to realize how his

HOLMES AND FREE SPEECH 71

blustery comments about the logic of perse- cution might seem “cold talk if you have been made to feel popular displeasure,” as of course Laski had been. “I should not be cold about that,” Holmes insisted. Nor was he afraid to speak his mind. Nonetheless, he claimed, he was too busy at work to write outside the job.

Holmes’ letter to Laski was written on Sunday, October 26. Less than a week later, on Saturday November 1, he sent the following response to Frankfurter:

Your letter gave me great pleasure to know that all is going well. But the same causes that have delayed my answer make it impossible for me to write outside the job. I am too busy. Just now I am full of a tentative statement that may see light later on kindred themes to your subject but I don’t yet know whether what I have written quasi in furore, as Saunders says, is good enough. And ahead of me is a string of cases to be remediated and that drives me mad. I already had told Laski that the notion of my writing an article was no go.237

The “tentative statement” Holmes refers to in this letter is almost certainly his dissent in Abrams, which Holmes prepared ahead of time and circulated to his colleagues on November 6 when he received a copy of the majority opinion.238 Thus, after receiving a request to write an article on tolerance from both Frankfurter and Laski, Holmes wrote his dissent in Abrams “quasi in furore”—as if possessed. That dissent, of course, was precisely the kind of “blast on tolerance” that Laski and Frankfurter had wanted Holmes to write. And, when it was handed down the following week, they and the other young men who had been lobbying Holmes made their gratitude known to him in a series of gushing letters.

Laski called Holmes’ dissent “a fine and moving document for which I am deeply and

happily grateful.”239 Frankfurter wrote of “the gratitude and, may I say it, the pride I have in your dissent.”240 Lippmann wanted Holmes “to know that there exists profound gratitude to you, coupled with a pretty clear sense not to abuse in any way what you have vindicat- ed.”241 Croly was “so deeply moved by it that I cannot forbear to write you and tell you what a profound piece of legal and political reasoning it seemed to me to be.”242

And Hand confessed that he could not “help feeling like thanking you, even though I recall the annoyance it gives me when anyone undertakes to thank me for what I may say in an opinion.”243

Based on the effusiveness of these letters, it seems clear that Holmes’ young friends viewed his dissent as, at least in part, a defense of them and a response to their arguments for tolerance. Did Holmes view it the same way? That question is impossible to answer. There is nothing in his letters to indicate that he did, although that should not be surprising. A judge as concerned about his reputation as Holmes was not likely to admit that he had written an opinion out of consideration for his friends. Besides, Holmes may not have been aware himself of the role that personal sympathy played in his decision. Less than a year before writing his Abrams dissent, Holmes had bought a print by the Dutch painter Adriaen van Ostade that depicted a peasant family saying grace over a bowl of porridge. His description of the print to a friend could well be used to describe his dissent in Abrams. “It has the line of piety that Millet got in his Angelus,” Holmes wrote, “but so simple, so unconscious, so immedi- ately sympathetic. I mean you don’t feel that Ostade was seeing himself sympathize.”244

CONCLUSION

To say that Holmes changed his mind about the value of free speech is not to suggest that his Abrams dissent came completely out

72 JOURNAL OF SUPREME COURT HISTORY

of the blue. To the contrary, it built on many of the themes and ideas he had been expressing for years—his skepticism of objective truth, his commitment to Darwinism, his faith in free markets, and his taste for competition and battle. In addition, the process Holmes went through on the way to writing his Abrams dissent serves as an illustration of his most famous dictum—that “the life of the law has not been logic; it has been experience.” It was the experience of debating the issue of free speech and watching his young friends attacked for their views that helped pushed him past the logic of persecution.

But although Holmes’ Abrams dissent did not come out of the blue, it did mark a critical point in his thinking. Prior to that point, he had been willing to accept govern- mental suppression of speech as simply another instance of the majority’s right to sacrifice the interests of the individual. From Abrams onward, however, he viewed speech differently—as a privileged activity that was protected from governmental regulation be- cause of the benefits it offered to society.

Holmes’ dissent also marked a turning point in the country’s view of free speech. And in that sense, his transformation is representative of the experience of society as a whole during World War I and the first Red Scare. For much of the nineteenth century, free speech had been viewed as a fringe issue that affected only extremists— advocates of free love, for example, or radical unions like the Wobblies.245 During the war, however, many mainstream thinkers saw individuals they knew and respected come under suspicion and persecution for their views. That experience awakened in them a new appreciation for the value of free speech, just as Holmes was made more sensitive through the experience of his friends.246 And, once those in the mainstream began to think of free speech as a personal issue—not simply an abstract ideal—it was inevitable that the country would move toward a more expansive view of the First Amendment.

For advocates of free speech today, the lesson of this story is clear. The strength of First Amendment rights is largely dependent upon the extent to which the majority views those rights as relevant to itself. In an era in which corporations and other powerful in- stitutions frequently assert free speech claims in support of their own interests,247 it should therefore be no surprise that First Amendment rights are as strong as they are. Whether the courts should recognize those claims is certainly open to debate. But what seems beyond debate is the proposition that free speech thrives when everyone—judges in- cluded—has a stake in its survival.

Editor’s Note: This article is based upon material published in The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America (Metropolitan Books, 2013).

ENDNOTES 1 See Patterson v. Colorado, 205 U.S. 454 (1907). 2 See Fox v. Washington, 236 U.S. 273 (1915). 3 See Schenck v. United States, 249 U.S. 47 (1919);

Frohwerk v. United States, 249 U.S. 204; Debs v. United

States, 249 U.S. 211 (1919). 4 Letter from OWH to Sir Frederick Pollock (Feb. 1920),

in 2 HOLMES‐POLLOCK LETTERS: THE CORRESPONDENCE OF

MR. JUSTICE HOLMES AND SIR FREDERICK POLLOCK, 1874–

1932, at 36 (Mark DeWolfe Howe ed., 2nd ed. Belknap

Press of Harvard University Press 1961). 5 See OLIVER WENDELL HOLMES, THE COMMON LAW, 41

(Belknap Press of Harvard University Press 2009) (1881). 6 See Lochner v. New York, 198 U.S. 45 (1905). 7 Letter from OWH to Harold J. Laski (March 4, 1920), in

1 Holmes‐Laski Letters: THE CORRESPONDENCE OF MR.

JUSTICE HOLMES AND HAROLD J. LASKI, 1916–1935, at 249

(Mark DeWolfe Howe ed. Harvard University Press

1953). 8 Robert A., Ferguson, Holmes and the Judicial Figure, in

THE LEGACY OF OLIVER WENDELL HOLMES, JR., 155, 180

(Robert Gordon ed., 1992) (comparing Holmes’ dissent to

the Gettysburg Address); SAMUEL J., KONEFSKY, THE

LEGACY OF HOLMES AND BRANDEIS: A STUDY IN THE

INFLUENCE OF IDEAS 207 (MacMillan 1956) (comparing

Holmes’ dissent to Milton). 9 For other descriptions of this shift, see THE FUNDAMEN-

TAL HOLMES: A FREE SPEECH CHRONICLE AND READER

HOLMES AND FREE SPEECH 73

(Ronald K.L. Collins ed., Cambridge Univ. Press 2010);

Stephen M. Feldman, Free Speech, World War I, and

Republican Democracy: The Internal and External

Holmes, 6 FIRST AMEND. L. REV. 192 (2008); Edward

G. White, Justice Holmes and the Modernization of Free

Speech Jurisprudence: The Human Dimension, 80 CALIF.

L. REV. 391 (1992); David S. Bogen, The Free Speech

Metamorphosis of Mr. Justice Holmes, 11 HOFSTRA L.

REV. 97 (1982). 10 137 Mass. 392 (1884). 11 28 N.E. 1 (1891). 12 Id. at 5. 13 Id. at 4. This, of course, is the opposite of the modern

rule, which protects libelous statements about public

officials and public figures made in good faith and

concerning matters of public concern. See N.Y. Times v.

Sullivan, 376 U.S. 397 (1964). 14 29 N.E. 517 (Mass. 1892). 15 39 N.E. 113 (1895), aff’d, 167 U.S. 43 (1897). 16 See Bd. of County Comm’rs v. Umbehr, 518 U.S. 668,

674 (1996) (the Court has “long since rejected Justice

Holmes’ famous dictum” from McAuliffe); Hague v. CIO,

307 U.S. 496 (1939) (the public has “a kind of First‐

Amendment easement” to use streets, sidewalks, and

parks for expressive purposes). 17 205 U.S. 454, 462 (1907). 18 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF

ENGLAND 151 (Oxford: Clarendon Press 1765–69). 19 236 U.S. 273, 277–78 (1915). 20 Espionage Act of 1917, ch. 30, tit. I, 40 Stat. 217, 219

(1917). 21 Transcript of Record at 17–18, Schenck v. United

States, 249 U.S. 47 (1919) (No. 1017). 22 See id. at 31–37. 23 Motion for Leave to File a Petition for A Writ of

Mandamus at 9–10, Frohwerk v. United States, 249 U.S.

204 (No. 685) (1919). 24 Transcript of Record at 39, Frohwerk v. United States,

249 U.S. 204 (No. 685) (1919). 25 See Convicted in 3 Minutes: Verdict on Frohwerk Case

Set Record for Haste, KANSAS CITY TIMES, June 29, 1918,

at 1. 26 Transcript of Record at 177–189, Debs v. United

States, 249 U.S. 211 (1919) (No. 714). 27 Id. at 184. 28 Letter from John Lord O’Brian to Edwin S. Wertz,

(June 20, 1918), in Law Spec. Coll. 05, O’Brian Papers

(on file with Charles B. Sears Law Library, SUNY at

Buffalo, Box 18, Folders 5–7). 29 Schenck v. U.S., 249 U.S. 47, 51–52. 30 Id. at 52. 31 See L.A. Powe Jr., Searching for the False Shout of

Fire, 19 CONST. COMM. 345 (2002). 32 See Robert L. Tsai, Fire, Metaphor, and Constitutional

Myth‐Making, 93 GEO. L.J. 181, 196 n.57 (2004).

33 Transcript of Record at 249, Debs v. United States,

249 U.S. 211 (1919) (No. 714). 34 See Letter from Lloyd H. Landau to Augustin Derby

(June 7, 1935) in Oliver Wendell Holmes Papers, on file

with Harvard Law School Library [hereinafter Holmes

Papers] (explaining that Holmes always read the record in

a case before writing an opinion that was assigned to him). 35 See, e.g., White, supra note 9, at 418; Bogen, supra

note 9, at 158–59. 36 Com. v. Kennedy, 48 N.E. 770, 772 (Mass. 1897). 37 Holmes, supra note 5, at 62. 38 Swift & Co. v. United States, 196 U.S. 375, 402 (1905). 39 Schenck v. United States, 249 U.S. 47, 52 (1919). 40 DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN

YEARS 132–46 (Cambridge University Press 1997). 41 Schenck, 249 U.S. at 52. 42 Frohwerk v. United States, 249 U.S. 204, 208–09

(1919). 43 Id. 44 Id. at 209. 45 See Rabban, supra note 40, at 132–46. 46 Debs v. United States, 249 U.S. 211, 212–13 (1919). 47 Id. at 212–13. 48 Id. at 216. 49 See KONEFSKY, supra note 8, at 201 (arguing that the

phrase was, “a bit of neat verbalization on the part of a

man given to terse expression”). 50 Letter from OWH to Frederick Pollock (April 5, 1919),

supra note 4, at 7. 51 Letter from OWH to Alice Stopford Green (March 26,

1919) in Holmes Papers, reel 32. 52 See Letter from OWH to Laski (May 25, 1918), supra

note 7, at 157. 53 247 U.S. 402. 54 See id. at 424. 55 Transcript of Record at 1‐7, Baltzer v. United States,

248 U.S. 593 (1918). 56 Brief for the United States at 4, 248 U.S. 593 (1918)

(No. 320). 57 See Reply Brief of Plaintiffs In Error to the District

Court of the United States for the District of South Dakota

at 2, Baltzer v. United States, 248 U.S. 593 (1918) (No.

320). 58 Letter from OWH to Laski (Dec. 3, 1918), supra note 7,

at 176. 59 Baltzer v. United States (Holmes, J., dissenting)

(unpublished opinion), memorandum distributed to the

Justices (December 3, 1918), in Holmes Papers, reel 70. 60 Id. 61 See Sheldon M. Novick, The Unrevised Holmes and

Freedom of Expression, 1991, SUP. CT. REV. 303, (1991);

But see White, supra note 9 (arguing that, although

Baltzer shows that Holmes “could wax eloquently

about free speech,” it is “hardly evidence that he had

developed the kind of approach to free speech issues

74 JOURNAL OF SUPREME COURT HISTORY

that he would exhibit in some of his subsequent

opinions”). 62 See Novick, supra note 61, at 333 n.135. 63 Sheldon Novick discovered Holmes’ dissent while

researching his biography of the Justice. 64 See Chauncey Belknap, Unpublished diary entry Oct.

21, 1915, (on file with Patterson, Belknap, Webb & Tyler

Law Library, New York, New York). 65 Letter from OWH to Laski (July 7, 1918), supra note 7,

at 160. 66 Letter from OWH to Lewis Einstein (July 11, 1918), in

Holmes Papers. 67 Letter from Learned Hand to OWH (June 22, 1918), in

Holmes Papers, reel 33. 68 See RICHARD POLENBERG, FIGHTING FAITHS: THE ABRAMS

CASE, THE SUPREME COURT, AND FREE SPEECH 11–27

(Cornell University Press 1999) (1987). 69 Id. at 22. 70 Transcript of Record at 16–19, Abrams v. United

States, 250 U.S. 616 (1919) (No. 316). 71 POLENBERG, supra note 68, at 122. 72 Id., at 43. 73 Sedition Act of 1918, ch. 75, 40 Stat. 553, repealed by

Act of Mar. 3, 1921, ch. 136, 41 Stat. 1359. 74 See Abrams v. United States, 250 U.S. 616. 75 Id. at 624–31 (Holmes, J., dissenting). 76 Id. at 625. 77 Id. at 627–28. 78 Id. at 628. 79 Id. at 628. 80 Id. at 630. 81 Id. 82 251 U.S. 466 (1920). 83 Transcript of Record at 129, 145 Schaefer v. United

States, 251 U.S. 466 (1919) (No. 804); Alexander

Waldenrath, German Language Newspress in Pennsyl-

vania during World War I, PENNSYLVANIA HISTORY 42, no.

1, January, 1975, 30–31. 84 Brief for Defendants in Error to the District Court of the

United States for the Eastern District of Pennsylvania

at 1–3, Schaefer v. United States, 251 U.S. 466 (1919)

(No. 804). 85 See Schaefer, 251 U.S. 466, 476 (1920) 86 Id. at 479. 87 Id. at 482 (Brandeis, J., dissenting). 88 Id. at 493–94. 89 252 U.S. 239, 245–47 (1920). 90 Id. at 248. 91 Id. at 249–51. 92 Id. at 273 (Brandeis, J., dissenting). 93 Id. at 271. 94 255 U.S. 407, 437 (1921) (Holmes, J., dissenting). 95 See supra notes 14–15 and accompanying text. 96 268 U.S. 652, 669 (1925). 97 Id. at 669.

98 Id. at 673 (Holmes, J., dissenting). 99 See United States v Schwimmer, 279 U.S. 644 (1929). 100 Id. at 644 (Holmes, J., dissenting). 101 274 U.S. 357 (1927) (Brandeis, J., concurring). 102 254 U.S. 325, 334–43 (1920) (Brandeis, J.,

dissenting). 103 Note from OWH to Louis D. Brandeis, in Louis D.

Brandeis Papers, (on file with Harvard Law School

Library box 5, folder 13) [hereinafter Brandeis Papers]. 104 See Novick, supra note 61, at 363. 105 See Memorandum from Dean Acheson to Louis D.

Brandeis (Nov. 19, 1920), in Brandeis Papers, box 5,

folder 12. 106 Melvin I. Urofsky, The Brandeis‐Frankfurter Con-

versations, 1985 SUP. CT. REV. 299, 320 (1985). 107 268 U.S. 652, at 672 (Holmes, J., dissenting) (stating

that “the general principle of free speech, it seems to me,

must be taken to be included in the Fourteenth

Amendment, in view of the scope that has been given

to the word ‘liberty’ as there used”). 108 See H.L. POHLMAN, JUSTICE OLIVER WENDELL HOLMES:

FREE SPEECH AND THE LIVING CONSTITUTION (New York

University Press 1991); Novick, supra note 61; Bogen,

supra note 9. 109 Abrams v. United States, at 250 U.S. 616, 627 (1919)

(Holmes, J., dissenting). 110 See Letter from OWH to Nina Gray (March 5, 1921),

in Holmes Papers, reel 23. 111 See, e.g., White, supra note 9, at 431; Mathias

Reimann, Holmes’s Common Law and German Legal

Science 104 in THE LEGACY OF OLIVER WENDELL HOLMES

JR. (1992). 112 See Lochner v. New York, 198 U.S. 45, 76 (1905). 113 Zechariah Chafee, Freedom of Speech, NEW REPUBLIC

17, no. 211, November 16, 1918. 114 Bill Lynskey, Reinventing the First Amendment in

Wartime Philadelphia, Vol. CXXXI, No. 1 PENNSYLVANIA

MAGAZINE OF HISTORY AND BIOGRAPHY 33, at 65

(January 2007). 115 Frohwerk v. United States, 249 U.S. 204, 208–209

(1919). 116 Motion for Leave to File a Petition for a Writ of

Mandamus, Frohwerk v. United States, 249 U.S. 204

(1919) (No. 685). 117 See Novick, supra note 61, at 303, 361. 118 Oliver Wendell Holmes Jr., Privilege, Malice, and

Intent, 8 HARV. L. REV. 1 (1894). 119 See supra note 10–12 accompanying text. 120 Letter from OWH to Herbert Croly (May 12, 1919), in

Holmes Papers. 121 Abrams v. United States, 250 U.S. 616, at 629 (1919)

(Holmes, J., dissenting). 122 Id. at 630. 123 A Dangerous Encroachment Upon the Freedom of

Speech, SAN FRANCISCO EXAMINER, March 29, 1919.

HOLMES AND FREE SPEECH 75

124 John H. Wigmore, Abrams v. U.S: Freedom of Speech

and Freedom of Thuggery in War‐Time and Peace‐Time,

14 ILL. L. REV. 539, 545 (1920). 125 36 Were Marked as Victims by Bomb Conspirators,

NEW YORK TIMES, May 1, 1919. 126 FELIX FRANKFURTER REMINISCES 58 (Harlan B. Phillips

ed. Reynal 1960). 127 FRANKFURTER REMINISCES, supra note 126, at 105–12;

Brad Snyder, The House That Built Holmes, 30 LAW AND

HISTORY REVIEW 661, 661 (2012); Jeffrey O’Connell and

Nancy Dart, The House of Truth: Home of the Young

Frankfurter and Lippmann, 35 CATH. U. L. REV. 79, 86,

88 (1985). 128 Id. 129 LIVA BAKER, THE JUSTICE FROM BEACON HILL: THE LIFE

AND TIMES OF OLIVER WENDELL HOLMES 174 (HarperCol-

lins 1991). 130 Masses Pub. Co. v. Patten, 244 F. 535, 540 (S.D.N.Y.

1917), rev’d, 246 F. 24 (2d Cir. 1917). 131 Letter from Learned Hand to OWH (June 22, 1918), in

Holmes Papers, reel 33. 132 Letter from OWH to Learned Hand (June 24,1918), in

Holmes Papers reel 26. 133 ALBERT W. ALSCHULER, LAW WITHOUT VALUES: THE

LIFE, WORK & LEGACY OF JUSTICE HOLMES 42 (University

of Chicago Press 2000). 134 Letter from OWH to Laski (June 25, 1918), supra note

7, at 159. 135 Letter from OWH to Laski (July 5, 1918), supra note

7, at 159–60. 136 Id. 137 Letter from OWH to Laski (July 7, 1918), supra note

7, at 160–61. 138 ALEXANDER ADAM SEATON, THE THEORY OF TOLERATION

UNDER THE LATER STUARTS 26–27 (Cambridge University

Press 1911). 139 Letter from OWH to Laski, (July 18, 1918), in Holmes

Papers, reel 4. 140 Letter from OWH to Laski (November 8 1918), supra

note 7, at 170. 141 Id. at 171. 142 Letter from Herbert Croly to Zechariah Chafee,

(September 24,1918), in Chafee Papers, box 1, folder 9. 143 See, e.g., Commonwealth v. Blanding, 20 Mass. 304,

308 (Mass. 1825); Respublica v. Oswald, 1. Dall. 319,

325 (Pa. July 1788); Dailey v. Superior Court of City &

County of San Francisco, 112 Cal. 94, 100 (1896). 144 Chafee, supra note 113, at 67. 145 Id. 146 Id. 147 Id. at 68. 148 Letter from OWH to Herbert Croly (November 22,

1914) (on file with Houghton Library, Harvard College

Library, Harvard University Autograph File H).

149 Letter from OWH to Sir Frederick Pollock (Dec. 29

1915), supra note 4, at 229. 150 FELIX FRANKFURTER REMINISCES, supra note 126, at 92. 151 Baltzer v. United States, 248 U.S. 593 (1918). 152 Letter from OWH to Laski (Dec. 3, 1918), supra note

7, at 176. Although Holmes did not refer specifically to

Baltzer in his letter, it seems clear it was the subject of his

conversation with Brandeis. Other than Baltzer, there

were only two cases in which Holmes wrote a dissent in

the months after Brandeis’ visit. In one, Ruddy v. Rossi,

248 U.S. 104 (1918), Brandeis joined the majority, not

Holmes’ dissent. In the other, International News Service

v. Associated Press, 248 U.S. 215 (1918), Brandeis wrote

his own dissent, making it unlikely that he would solicit a

separate dissent from Holmes. Moreover, the latter case

involved a dispute between wire services about the use of

each other’s articles—hardly a burning theme. 153 Letter from OWH to Laski (Feb. 28, 1919), supra note

7, at 187. 154 JOHN STUART MILL, ON LIBERTY, 78 (Penguin Books

1985) (1859). 155 Id. at 81. 156 Letter from OWH to Laski (March 16, 1918), supra

note 7, at 190. 157 Letter from Laski to OWH (March 18, 1919), supra

note 7, at 191. 158 Letter from Learned Hand to OWH (April 1, 1919), in

Holmes Papers, reel 33. 159 Letter from OWH to Learned Hand, Washington,

D.C., April 3, 1919 Hand Papers, box 103B, folders 25–

26. 160 Letter from Learned Hand to Zechariah Chafee

(December 3, 1920), in Chafee Papers, box 4, folder 20. 161 Editorial Notes, NEW REPUBLIC, April 19, 1919, at 362. 162 Paul A. Freund, The Debs Case and Freedom of

Speech, NEW REPUBLIC 19, no. 235, May 3, 1919, at 13. 163 Id. 164 Id. at 14. 165 Letter from OWH to Herbert Croly, enclosed in a letter

to Laski (May 13, 1919), supra note 7, at 202–04. 166 Letter from Laski to OWH (May 11,1919), supra note

7, at 201–02. 167 Letter from OWH to Laski (May 13, 1919), supra note

7, at 202. 168 Letter from Learned Hand to Freund, (May 7, 1919),

in Holmes Papers, box 21, folder 1. 169 36 Marked as Victims by Bomb Conspirators, NEW

YORK TIMES, May 1, 1919. 170 Recalls April Plot to Kill through Mails, NEW YORK

TIMES, June 3, 1919, 2. 171 Letter from OWH to Sir Frederick Pollock (June 27,

1919), supra note 4, at 17. 172 Letter from Laski to OWH (May 20, 1919), supra note

7, at 206.

76 JOURNAL OF SUPREME COURT HISTORY

173 Letter from Laski to OWH (May 30,1919), supra note

7, at 201–02. 174 Letter from OWH to Laski (August 19,1919), in

Holmes Papers, reel 4. 175 Letter from Harold J. Laski to Zechariah Chafee

(July 23, 1919), in Chafee Papers, box 14, folder 15. 176 Zechariah Chafee, Freedom of Speech in War Time,

32 HARV. L. REV. 932–973 (1919). 177 Id. at 938. 178 Id. at 941. 179 Id. at 943–44. 180 Id. 181 See Gerald Gunther, Learned Hand and the Origins of

Modern First Amendment Doctrine: Some Fragments of

History, 27 STAN. L. REV. 719, 747–48 (1975). 182 Chafee, supra note 176, at 967–68. 183 Id. 184 See RABBAN, supra note 40. 185 Letter from Learned Hand to Zechariah Chafee

(January 2, 1921), in Learned Hand Papers (on file

with Harvard Law School Library, box 15, folder 26). 186 Chafee, supra note 176, at 968. 187 Id. at 969. 188 Letter from Harold J. Laski to Zechariah Chafee

(July 23, 1919), in Chafee Papers. 189 Letter from Zechariah Chafee to Judge Amidon

(September 30, 1919), in Chafee Papers, box 4, folder 1. 190 SIR LESLIE STEPHEN, ESSAYS ON FREETHINKING AND

PLAINSPEAKING 45 (Smith Elder 1907). 191 Id. at 409. 192 Abrams v. United States, 250 U.S. 616, 630

(1919). 193 Letter from Laski to OWH (July 17, 1921), supra note

7, at 351. In this letter, Laski refers to Francis Hirst and

adds, “you may remember that I lent you his life of Adam

Smith.” Holmes’ black book indicates that he read the

biography late in the summer of 1919. 194 FRANCIS WRIGLEY HIRST, ADAM SMITH, 193 (MacMil-

lan 1904). 195 E. S. P. HAYNES, THE DECLINE OF LIBERTY IN ENGLAND

205 (Grant Richards 1916). 196 Id. at 213–14. 197 Letter from OWH to Sir Frederick Pollock (Sept. 19,

1919), supra note 4, at 25. 198 ROBERT K. MURRAY, RED SCARE: A STUDY IN NATIONAL

HYSTERIA, 1919–1920, 34, 81 (University of Minnesota

Press 1955). 199 ANN HAGEDORN, SAVAGE PEACE: HOPE AND FEAR IN

AMERICA, 159 (Simon and Schuster 2007). 200 Id. at 55–57. 201 ISAAC KRAMNICK AND BARRY SHEERMAN, HAROLD LASKI:

A STUDY IN THE INFLUENCE OF IDEAS, 128 (Macmillan

1956). 202 Id. at 28. 203 Id. at 130.

204 HAROLD J. LASKI, AUTHORITY IN THE MODERN STATE

(Yale University Press 1917). 205 LIVA BAKER, FELIX FRANKFURTER, 66–67 (Coward‐

McCann 1969). 206

“Report of President’s Mediation Commission,”

MONTHLY REVIEW OF THE U.S. BUREAU OF LABOR STATISTICS

6, no. 1, January, 1918 (Washington, D.C.: U.S.

Government Printing Office, 1918), 16. 207 FRANKFURTER REMINISCES, supra note 126, at 130–135;

MICHAEL E. PARRISH, FELIX FRANKFURTER AND HIS TIMES:

THE REFORM YEARS 97–101 (Free Press 1982). 208 Report on the Mooney Dynamiting Cases in San

Francisco, OFFICIAL BULLETIN, vol. 2, no. 219, January 28,

1918. 209 Letter from Theodore Roosevelt to Felix Frankfurter

(December 19, 1917) in 2 THEODORE ROOSEVELT AND HIS

TIME: SHOWN IN HIS OWN LETTERS, at 464 (Joseph Bucklin

Bishop ed. Charles Scribner’s Sons 1920). 210 Parrish, supra note 207, at 107. 211 FRANKFURTER REMINISCES, supra note 126, at 139–142. 212 Id. at 169–70. 213 Letter from Roscoe Pound to Felix Frankfurter

(April 28,1919), in Felix Frankfurter Papers, 1846–

1966, (on file with Library of Congress, box 90, reel 55). 214 Letter from Louis D. Brandeis to Alice Goldmark

Brandeis (June 14,1919), in 4 LETTERS OF LOUIS D.

BRANDEIS, at 400 (Melvin I. Urofsky and David W. Levy

eds. Norman: University of Oklahoma Press 2002). 215 Letter from OWH to Laski (April 4, 1919), supra note

7, at 193. 216 Letter from Laski to OWH (April 19, 1919), supra

note 7, at 196. 217 Letter from Laski to OWH (May 11, 1919), supra note

7, at 201. 218 Letter from OWH to Laski (May 13, 1919), supra note

7, at 202. 219 Letter from Laski to OWH (May 15, 1919), supra note

7, at 204. 220 Letter from OWH to Laski, (May 18, 1919) (quoting

letter to F.W. Grinnell), supra note 7, at 204. 221 Letter from Laski to OWH (May 20, 1919), supra note

7, at 204. 222 Letter from Roscoe Pound to OWH (May 29, 1919), in

Holmes Papers, reel 36. 223 Letter from OWH to Abbott Lawrence Lowell (June 2,

1919) in Holmes‐Laski, supra note 7 at 211 fn2. 224 Letter from OWH to Laski (June 16, 1919), in Holmes

Papers, reel 4. 225

“Laski Scores Commissioner’s Action in Walkout

Crisis,” HARVARD CRIMSON, Oct. 10, 1919. 226 Women Take a Hand in the Police Strike, BOSTON

DAILY GLOBE, Oct. 16, 1919, 1. 227 See “The Boston Police Strike,” HARVARD ALUMNI

BULLETIN 106, Oct. 23, 1919. 228 BOSTON EVENING TRANSCRIPT, Oct. 17, 1919.

HOLMES AND FREE SPEECH 77

229 Kramnick and Sheerman, supra note 201, at 135–38. 230 See id. 231 Letter from Felix Frankfurter to Marion Denman

(Oct. 23, 1919) in Felix Frankfurter Papers August–

November 1919 (on file with Library of Congress,

Manuscript Division, box 9, reel 4). 232 Id. 233 Id. 234 Letter from OWH to Laski (Oct. 26, 1919), supra

note, 7. 235 Holmes, supra note 5, at 44. 236 Id. at 1. 237 Letter from OWH to Frankfurter (November 1, 1919)

in HOLMES AND FRANKFURTER: THEIR CORRESPONDENCE,

1912–1934, at 73–4 (Robert M. Mennel and Christine L.

Compston eds., University Press of New England, 1996). 238 Letter from OWH to Sir Frederick Pollock (Nov. 6,

1919), supra note 4, at 29 (explaining that he had just sent

around a dissent that had been prepared earlier in a case

that he was “stirred about”). 239 Letter from Laski to OWH (Nov. 12, 1919), supra

note 7. 240 Letter from Laski to OWH (Nov. 12, 1919), supra

note 7, at 220. 241 Letter from Walter Lippmann to OWH (Nov. 13,

1919), in Holmes Papers, reel 35, frame 0337. 242 Letter from Herbert Croly to OWH (Nov, 13, 1919), in

the Holmes Papers, reel 30, frame 0357. 243 Letter from Herbert Croly to OWH (Nov, 13, 1919), in

the Holmes Papers, reel 30, frame 0357. 244 Letter from OWH to Laski, Jan. 25, 1919, supra note

7, at 180. 245 See Rabban, supra note 40. 246 See id at 16. 247 See, e.g., Citizens United v. Federal Elections

Comm’n, 558 U.S. 310 (2010).

78 JOURNAL OF SUPREME COURT HISTORY

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