Justice Holmes’ changing conception of free speech

Justice Oliver Wendell Holmes’s opinion for the Supreme Court in Schenck v. United States (1919) shocked his libertarian friends and colleagues, who had always believed that he was a champion of free speech. His narrow conception of the Clear and Present Danger Test, which established the First Amendment standard for distinguishing protected from unprotected speech, afforded scant support for dissenting opinions that criticized governmental conduct during World War I.

In the aftermath of the Schenck decision, Holmes was subjected to a barrage of critical letters from friends, as well as editorials and scholarly articles, urging him to reconsider his thoughts and embrace broader protection for freedom of speech.

The dialogue between Holmes and his critics that ensued in the summer of 1919 demonstrates that Supreme Court Justices may be influenced by scholarly writings and, indeed, can and do change their minds about the meaning of the Constitution. Credit to Holmes for being open-minded on parameters of free speech.

Justice Holmes’s conversion to a broader scope of protected speech did not come without resistance and struggle. He conceded, while writing his opinion in Schenck, that the case “had wrapped itself around me like a snake in a deadly struggle” to articulate the premises of protected speech. His initial rejoinders to pointed criticisms of Schenck were defensive, but he willingly embarked on a wide-ranging reading project, particularly in the fields of philosophy and history, as he searched for logical foundations on which to ground free speech protections.

Holmes had been a life-long student of philosophy, but in the summer of 1919, he turned to John Stuart Mill’s, “On Liberty,” an iconic defense of free speech penned by the English philosopher in 1860. Mills had argued that speech should be limited only when it caused “harm” to society. “Opinions lose their immunity,” Mills wrote, “when the circumstances in which they are expressed” represent a “positive instigation to some mischievous act.”

Holmes apparently thought that his formulation of the Clear and Present Danger Test embodied Mills’ conception of protected speech, but his critics pointed out that he was mistaken. Professor Zechariah Chaffee of the Harvard Law School had written in the school’s law review that Holmes had “missed a magnificent opportunity” to draw the line between protected and unprotected speech. All that Holmes had done, according to Chaffee, was to note “certain plainly unlawful utterances,” when what he should have done was to develop a “rational principle” to guide the law of free speech.

Chaffee agreed with Judge Learned Hand, another critic of Holmes’s opinion in Schenck. They believed, in line with Mill, that speech should be “unrestricted” unless “it is clearly liable to cause direct and dangerous interference with the conduct of the war.” The line should be drawn, they believed, “at the point where words will give rise to unlawful acts.”

Chaffee and Hand, and Professor Ernst Freund of the University of Chicago, an eminent legal scholar, sought to persuade Holmes of the overriding value of “truth” in a democracy, and its essential link to free speech. Chaffee argued that one of the great purposes of society and government is to promote the “discovery and spread of truth on subjects of general concern.” That is possible only through “unlimited discussion” because once force is injected on either “the false side or the true,” the pursuit of truth is made many times more difficult. In essence, there is a great societal interest in the truth, which can be attained only if speech and discussion are protected. As Chafee wrote, “truth can be sifted out from falsehood only if the government is vigorously and constantly cross-examined.”

Justice Holmes read, and re-read, Professor Chafee’s article, and he invited Chafee to tea to discuss it. He brought along his close friend, Harold Laski, an English professor of political science who had accepted a teaching post at Harvard. Laski agreed with Chafee and recommended the arguments to Holmes, adding that he would “go to stake for every word.”

Their long discussion about the proper lines for determining the scope of free speech reflected Holmes’s growing understanding and perhaps appreciation of one of Professor Freund’s insightful criticisms of the Schenck decision. Freund, like Learned Hand, who would protect speech unless it constituted a “direct incitement” of illegal action, had contended that speech should be protected unless it represented “direct provocation which has reference to some definite and particular criminal act.”

But Freund went a step further and planted in the mind of Holmes, a judge who embraced pragmatism, a very practical reason for protecting speech, including Schenck’s opinions.

Freund reasoned that support for World War I was overwhelming, which meant that those like Schenck, who opposed the war and sought to generate opposition to the draft, were utterly incapable of hurting the war effort. Let them speak, Freund declared. Who will listen to them? Not the masses. The threat of dissenting speech to our nation, he wrote, is “largely imaginary.” The sensible thing to do with such critics, he said, was to ignore them, “for suppression only strengthened them.”

Justice Holmes’s critics proved persuasive, as we shall see next week we discuss his landmark dissent in Abrams v. United States.