Based on newly discovered letters and memos, this riveting scholarly history of the conservative justice who became a free-speech advocate and established the modern understanding of the First Amendment reconstructs his journey from free-speech skeptic to First Amendment hero.
It’s an interesting and important story for several reasons. One is the view it provides of the rather astounding effect that one Supreme Court Justice can have on the law of the entire country. Holmes’s famous dissents arguing for an expanded view of First Amendment freedoms were not as well written as those of Brandeis, to name but one other advocate who wrote more clearly, but it was Holmes, with his far-reaching influence and “force of personality” that affected the public consciousness, and, as Healy writes, “gave the movement its legitimacy and inspiration.” A second reason this story fascinates is the documentation of just how and why Holmes was influenced by his friends - a group of young intellectuals who came under government suspicion because of their backgrounds and liberal tendencies rather than because of any danger - either from intent or from effect - of their speech. And finally, there are the compelling philosophical issues about the First Amendment itself over which Holmes struggled: where should the line be drawn for freedom of speech? If the country is at war, must “all rights of the individual... become subordinated to the national rights in the struggle for national life” as one critic argued? Should war make a difference? If so, why? What if the war itself is unjust? And what about the difference between the intent of speech and its effect? Is it fair to ignore one or the other?
So what exactly happened between Schenck, decided March 3, 1919, and Abrams, decided November 10, 1919? This entertaining book by Healy answers that question.
Holmes was not initially in favor of toleration of other opinions. He didn’t believe in “natural rights.” (He had just recently written, “...there can be no legal right as against the authority that makes the law on which the right depends.” Kawananokoa v. Polyblank.) Also in 1907, his opinion for Patterson v. Colorado enshrined into law a "Blackstonian" view of free speech, which insisted that the purpose of the First Amendment “was to prevent all such ‘previous restraints’ upon publications as had been practiced by other governments, but not to prevent the subsequent punishment of such as may be deemed contrary to the public welfare.” (After publication, however, as the author commented, “all bets were off.”)
But Holmes had a number of very close friends - young, mostly Jewish intellectuals, a couple of whom he considered to be like his sons. Included among them were Harold Laski, Felix Frankfurter, Zechariah Chafee, and Louis Brandeis. These men had much more liberal ideas than Holmes on a wide array of subjects, including free speech, and they plied him with books to show him how their thinking had evolved. He happily read them, and engaged in debate with his friends, but resisted change.
However, after World War I, the mood in the country took a turn for the worse. A “Red Scare” following the Russian Revolution swept America. Congress passed the Espionage Act in June 1917 and the Sedition Act in the spring of 1918. U.S. officials, led by the Attorney General and young J. Edgar Hoover, who in 1919 was put in charge of the “Radical Division” at the F.B.I., eagerly stoked the flames, embarking on witch hunts for anyone deemed "suspicious". The Washington Post, reflecting the mood of the nation, wrote, “Too long the government pursued the policy of waiting until some overt act was committed before talking steps against the anarchists...” And as the author pointed out:
“Many of these [suspect] people, it was said, were teaching at universities, where they could corrupt the minds of the young. Many others were immigrants, particularly of Jewish ancestry. And for those unfortunate individuals who were both university professors and Jewish immigrants, well, the presumption of guilt was nearly automatic.”
Laski, Frankfurter, and Chafee were professors at Harvard, and Brandeis was on the Supreme Court. Brandeis enjoyed relative immunity compared to the others, who soon found their careers in jeopardy. This was probably the best thing that happened to free speech. As Healy observes after Laski came under fire:
“For now 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’s views shifted accordingly - and dramatically.”
It wasn’t just a case of Holmes liking these men and therefore feeling disposed to advocate on their behalf. He knew they posed no threat to the country, and that their ideas were not threatening but stimulating, and grounded in centuries of philosophical and legal debate. He argued in Abrams not only that one needn't worry because “bad” opinions would suffer accordingly in a free marketplace of ideas. He went farther, disavowing the idea that free speech is inapplicable during times of war, reemphasizing the “clear and present danger” criterion he had first articulated in Schenck. He had come to see the raft of cases brought under the Sedition and Espionage Acts as part of the government’s effort to impose uniformity of belief, and he opposed that effort. In yet another dissent, he wrote:
“...if there is any principle 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.”
He still felt that “persecution for the expression of opinions seems...perfectly logical.” But now he added - as John Stuart Mill had maintained in On Liberty, a book recommended to him by Laski - that opening up beliefs to refutation will only strengthen them if in fact they cannot be proven to be unfounded.
Evaluation: This is a highly interesting story and well-told, except, that is, for the prologue and first chapter. I thought the book would have been enhanced by omitting those two segments. Also, the author somewhat bizarrely and irrelevantly, as far as I could tell, decided to add information about Holmes’ love life. I saw no possible reason for it to be included.
The Great Dissent begins late in Holmes’ life. At the time, he was known for the speed with which he wrote his decisions and not always for the attention to detail that one might have wished for. (Pretty scary when you think he was writing for the Supreme Court!) His one saving grace appears to be that he retained a measure of intellectual curiosity. He cultivated friendships with younger men like Harold Laski, Learned Hand, and Felix Frankfurter who tried hard to introduce him to new ideas. It is to them, as much as to Holmes, that we owe our modern concept of free speech.
This is an extremely well researched and readable book about the intellectual history of Holmes’ dissent in Abrams v. United States gave us the foundation of present day free speech. Holmes “switched” sides through a series of decisions all concerning the limits of speech and the ability of the government to curtail speech during war. Protesters against the wars in Vietnam and Iraq can thank him.
If you are a lawyer, interested in the law, a believer in civil liberties or simply curious about the history of free speech, this is the book for you.
It may come as a surprise to many readers that the interpretation of the First Amendment that we take for granted today - that the government may constrain speech only when it presents a "clear and present danger" to society - is a fairly recent development. When first formulated by Justice Oliver Wendell Holmes in 1919, this was a somewhat radical notion that contravened the Supreme Court's much more restrictive standard at the time. It would not become the new orthodoxy for years to come.
Holmes himself had upheld that more restrictive standard earlier, in confirming the 1918 conviction (and 10-year prison sentence) of Eugene Debs, the Socialist candidate for President, for a public speech criticizing US participation in World War I. It's the intellectual journey of this conservative jurist, from a conviction that government could restrict any speech that Congress might condemn to a more expansive notion of what kinds of speech should be protected under the First Amendment, that is the focus of this excellent book.
Healy's task - illustrating how Holmes' thinking changed over time - is only possible because Holmes and his friends and colleagues put much of their debate and discussion in writing, in artful and intelligent letters. Several of those friends and colleagues - in particular Judge Learned Hand and the British political scientist Harold Laski - consciously set out to change Holmes' mind. Healy draws on their letters and those of several others to describe the intellectual debate and to illustrate the evolution of Holmes' thinking over time. He does an excellent job on both counts.
Without that intellectual debate, it seems unlikely that Holmes would have moved away from the highly circumscribed view of free speech that the Supreme Court embraced at the time. Instead, the rest of the Supreme Court (and American society) eventually caught up with him and turned his radical notions into settled law. Of course, by the evidence in this book, Holmes stands convicted of being an "activist judge" willing to reinterpret the meaning of the Constitution in response to changing political and social circumstances. Many of the Founders, after all (at least those of the Federalist persuasion), did not view the Alien and Sedition Acts of 1798 as contravening the right of free speech; today's Supreme Court would.
Those interested in our intellectual history and how the interplay of ideas has reshaped and reformed our legal foundation over time should find this book as interesting and entertaining as I did.
My advice to a layperson of U.S. Law who is considering reading this book is to familiarize yourself with the following beforehand:
1. Blackstonian view of free speech
2. Espionage Act of 1917
3. Sedition Act of 1798 and 1918
5. Legal intent vs. lay intent as defined and understood in the 18th, 19th and 20th centuries.
Once I educated myself on the above and with a dictionary of legal terms/definitions at my side, I read this book with great enthusiasm. The history of changes in the "meaning" of our First Amendment rights as we know it today is fascinating and powerful! "The Great Dissent" has sharpened my critical thinking skills while provoking self-examination of my own limited and prejudiced understanding of a constitutional right that I unwittingly generalized and took for granted.
Thomas Healy has done a great job with this subject. He has fleshed out who Oliver Wendell Holmes was, which is important in relation to the story and to his fateful decisions he makes. The cast of characters is not overwhelming and the tangents and opinions I believe were kept to a minimum. His history of free speech I thought was well thought out and gave me a good understanding of what the legal community thought of it at the time. His sources he used seem to have been chosen with care. His writing is clear and concise which is all one can ask for.
Is this the greatest work of non-fiction you will read all year? Probably not, after all it still is not on the most exciting topic regarding not one of the most exciting figures history has produced. But it isn't all bad either and that is quite the credit to Mr. Healy. He took a potential lame duck and turned it into a prized fowl.
The Great Dissent follows the path that Oliver Wendell Holmes took from 1918 to 1919 as he wrestled with the issue of the kinds of speech the government protects and the kinds that it can prosecute. Author Thomas Healy does a masterful job of taking someone with a novice understanding of the points of view involved (like me!) and explaining the nuances of the differences. Through careful analysis of legal opinions and letters to and from colleagues, Healy exposes the arguments that Holmes considered as his beliefs transformed from the Constitution being society's protector to the individual's protector.
The story weaves its way through the many free speech cases that reached the Supreme Court as a result of the Espionage and Sedition Acts enacted during the course of the First World War, and as much a part of the story as Holmes' journey is the story of his friends and colleagues who revered their old friend, but who had different opinions on free speech and wanted to sway Holmes to their way of thinking as he worked his way through the docket.
One often believes that the way things are is the way things have always been and I always find it fascinating when I run up against evidence where that's not the case. So it was with this book as Healy chronicled the interpretation of the First Amendment over the years and the cases that determined the generally understood meaning of the Amendment at that time. Good history all around!
I also enjoyed the serious, yet congenial back and forth that Holmes and his friends employed as they presented their arguments to each other. They all seemed to genuinely like each other while often having diametrically opposed opinions. It made me once again bemoan the present state of disagreement where two sides tend not to engage each other at all, but engage with their like-minded compatriots in calling the other side names. And Holmes' willingness to listen to opposing opinions and alter his on point of view when he felt it needed to be altered was also admirable.
The Great Dissent is a fine, engaging book on a dense subject that still is accessible to the layman. Highly recommended!
The Great Dissent: How Oliver Wendell Holmes Changed His Mind - And Changed the History of Free Speech in America by Thomas Healy was a great place to start. Though not a comprehensive biography of Justice Holmes, it certainly covers enough of Holmes early life to understand the type of man he was, and the context in which his mind and attitude were formed. Wounded three times during the Civil War while serving in the Union Army, once coming within a "sneeze" of death, Holmes attended Harvard and started his vocation as a lawyer.
Holmes was quite conservative in the early part of his career, even after ascending to the Supreme Court. However, he did not allow his general attitude towards the law to act as a filter in other areas of his life. Louis Brandeis, who would eventually join Holmes on the Supreme Court, and Harold Laski, were two of the most noted progressives of their day. Both remain two of the more noble heroes of the twentieth century.
Healy does a great job of creating a slow ascension to the pinnacle of Justice Holmes’s career - Abrams v. United States (1919). Our understanding and application of the First Amendment's guarantee of the freedom of speech. So much so, that at first I was quite shocked to learn of the very limited scope of the First Amendment prior to Abrams. Holmes dissent was joined only by Justice Brandeis. Holmes willingness to stand with such a small minority was even more courageous since he basically had to disagree with some of his previous rulings. To change course is always a bit frightening, as it requires an acknowledgment that one was wrong, or even more ominous, that our ability to remain on the path is outside our control. To face that decision from the heights of the Supreme Court must make it even more difficult.
Since the 1987 defeat of President Reagan’s nomination of Robert Bork, we seem more and more unwilling to nominate, let alone confirm, anyone who might actually have strong principles that guide them in their decision-making. Whether right or left, originalist or a constitutional evolutionist, nominees no longer seem to be selected by their beliefs, writings, careers, or abilities, but rather chosen with the hopes that they are so generic, no one can possibly object to them.
Rejecting men and women the caliber of Justice Holmes, Warren, Brandeis, Marshall and many other great minds to have served on the most esteemed bench, is I fear very dangerous. To safeguard the principle of our nation's birth that all men are created equal, is to place liberty at risk and not even know it.
Detailed, well annotated (but see below), it traces his changing views on the subject to his dissent in Abrams, which only led to the current view of Free Speech in the 60s.
This book will lead me to a more general biography of Holmes, and a search for other works on the subject; those that would interest a legal layman. It is a work to be read by those claiming the heritage of a liberal arts education.
On notes: Actual citation locations are missing due to a re-arrangement of the papers after the manuscript was complete. The final work should include a fuller reference, but even now enough information is included to find it with a brief Internet or Harvard search.