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When Neither Lunch Nor Speech Is Free

Mr. Holmes and the making of free speech.

By 12.3.13

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The Great Dissent: How Oliver Wendell Homes Changed His Mind—and Changed the History of Free Speech in America
By Thomas Healy
(Metropolitan Books, 336 pages, $14.99)

Those of us who review books for fun and profit rarely go back to read a tome a second time. We give a review our best shot and then move on. So many books, so little time. But with this biography I have gone back to it again because of a nagging doubt I had with its very title. 

Did that whited sepulcher for civil libertarians, Supreme Court Justice Oliver Wendell Homes Jr., really change his mind on free speech? And has the constitutional guarantee of free speech really changed? And if not, as I suspect, just how great a dissent could his carefully hedged demur in a 1919 sedition case have been? 

To be cold-eyed about it, just how free are Americans today when it comes to those inextricably linked guarantees that we can speak our minds in the privacy of our homes (and on the Internet) or in the public marketplace of ideas (also on the Internet)? Did Holmes really matter?

After reading it again, I do still recommend this book as a good starting point for anyone who wants to consider just how free our opinions can be when those currently in power not only intrude on our private conversations and thoughts at will, but also impose the most restrictive public barriers ever to information gathering about public matters. 

Author Thomas Healy teaches law and once covered the Supreme Court for The Baltimore Sun, so he writes well and is knowledgeable about the court and its workings. He also is pretty good with the history of the times when what he argues is a landmark case—Abrams v. United States—was handed down in 1919. Like today, it was a period of economic recession, active terrorist threats, and truly unsettling social change.

The first problem is with Holmes himself. For decades the Holmes image has been fixed by the lugubrious character actor Louis Calhern in the 1946 film The Magnificent Yankee—a hybrid of the unyielding integrity of George Washington, the dry wit of Mark Twain, and the intellectual vision of Thomas Jefferson. 

In fairness, Holmes was a complicated man, born and shaped in one century and having his greatest impact well into another. An heir (if somewhat estranged) to a famous Boston literary father, he braved the horrors of the Civil War, during which he was wounded three times. He had a decently respectable career as a Massachusetts Supreme Court jurist where he gained repute for cranking out brisk if somewhat unremarkable decisions.

Most notably during this time he framed a general attitude summed up in the famous quote, “The life of the law has not been logic; it has been experience…The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” For Holmes, while there were some broad principles that were well-founded, the actual state of the law at any moment had become what governments saidy it was given the political needs of the times.

Arguably, Holmes’s best days were already behind him by 1902 when President Theodore Roosevelt was convinced by Senator Henry Cabot Lodge that the 61-year-old jurist would be a safe pair of hands to fill a vacancy as associate justice of the U.S. Supreme Court. Roosevelt would regret that decision over the next decade. His other appointment, Louis Brandeis, would remain a loyal Progressive voice on the Court, while Holmes more often than not sided with the majority in striking down various Roosevelt initiatives.

By 1919 the 78-year-old Holmes had become what the British call “a rum bloke.” His reputation among the other justices was that of a quick writer of easy decisions whose amusing aphorisms were staples of newspaper feature articles. For all his surface geniality he also could be pompous and bitterly resentful of criticism of any kind. His desire to reach intellectual pre-eminence among American judges seemed beyond his reach.

It was a lonely and vulnerable time for Holmes. His ailing wife had taken to secluding herself at home, while he developed a reputation as a randy old goat who embarrassed dinner parties with painfully obvious flirtations with women. There were even rumors (true, it turned out) that he had a long-running affair with a British heiress which prompted him to take a number of trans-Atlantic sorties.

In his isolation, Holmes became an easy target for a group of ambitious young Progressive intellectuals who had transferred their allegiances from Roosevelt to Woodrow Wilson among the career opportunities that World War I had opened up during America’s astonishing ramp-up to a wartime society. 

Walter Lippmann, Felix Frankfurter, the British leftist economist Harold Laski, and other bright young things from The New Republic staff had joined with other young men on the make—the Dulles brothers, Franklin Roosevelt, and their beau ideal, Herbert Hoover—in Wilson’s suddenly vital wartime bureaucracy. They congregated mostly at a boarding house near Dupont Circle that came to be known as The House of Truth, for the absolute certainty its residents had of their elite status. Holmes soon became the pater familias at their marathon dinners, testing the young minds and being tolerated as he carried on a “slap and tickle flirtation” with Lippmann’s knockout blonde wife.

But as he tested their minds, they worked on his. They shamelessly and effectively lobbied him and found fertile ground for the true faith of the progressive movement—that the certainties of science could be used to solve all social problems, and that an elite of scientific adepts (including themselves, of course) was better suited to govern the masses than the flawed political selections served up by the masses themselves. 

But while he was susceptible to the blandishments of the House of Truth set, there is little evidence that it was reflected in his decisions in the cases before the Court during that troubled year after World War I had ended. Starting in the spring term of the Court in 1919, there was a series of appeals from convictions brought under the 1917 Espionage Act and other Wilson-era laws that aimed to suppress widespread opposition to American involvement in a European war. In all of those early cases, Holmes sided with the majority, even writing the majority decision to uphold the 20-year jail term handed to Socialist leader Eugene Debs for advocating draft resistance.

But other voices had gained Holmes’s ear during that summer. A Harvard scholar, Zachariah Chafee, and Holmes’s friend and supposed fellow Progressive Louis Brandeis, along with prominent jurists like Learned Hand and Benjamin Cardozo, were arguing both in public and in private letters to him that the government was overreaching into dangerous despotism that actually interfered with its efforts to defeat the terrorist bombing threats that so frightened the nation.

In the autumn term the Court took up another of the appeals from Espionage Act convictions. Abrams v. United States was a stupid case that never should have been prosecuted in the first place. Five Russian garment workers ditributed pamphlets that opposed not the Great War itself, but the later dispatch by President Wilson of U.S. troops to Russia as part of an Allied effort to overturn the Leninist revolution. The conviction would result in deportation. What’s ironic is that the Supreme Court majority upheld the convictions using the formula Holmes himself had created in the earlier convictions—that the test of prohibited speech was whether it created “a clear and present danger” to the public security.

Instead of a great cry of protest that enshrined a definite borderline beyond which the Wilson administration, or any subsequent government, dare not go, Holmes’s “great dissent” reads like something of a waffle. Without refuting his “clear and present danger” standard, he nudged it slightly to argue that “the silly leaflet by an unknown man” was not enough trigger a government prosecution. To reach that level of liability the “clear and present danger” had to “threaten immediate interference with the lawful and pressing purposes of the law.”

But left untouched from that day to this is the power of the government itself to determine whether its pressing purposes are being threatened. With that power left undefined, Washington can intern citizens of a suspect ethnic group, infiltrate uncomfortable political movements, use government agencies to harass protestors, and prosecute government employees who disclose inconvenient truths about its actions.

So how great was The Great Dissent? Not very. Abrams and his band ended up back in Russia. Successive presidents, notably Franklin Roosevelt and Barack Obama, have not flinched from using national security threats to gag us at their convenience and the Supreme Court has generally upheld them.

While author Healy overreaches when he argues that Holmes’s formulations “have worked their way into our collective consciousness, becoming part of our language…and our identity as a nation,” The Great Dissent remains a book to read, if only to get one’s juices flowing.

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About the Author

James Srodes, an author and broadcaster, is a former Washington bureau chief for Forbes and Financial Worldmagazines. His latest book, On Dupont Circle: Franklin and Eleanor Roosevelt and the Progressives Who Shaped Our World, is being published next week. His email address is srodesnews@msn.com.