The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America by Thomas Healy. The book seeks to tell the story of how the Supreme Court Justice changed his mind about the limits that the government could impose on free speech, moving from a position permissive of the government's laws against sedition to one much more in defense of the citizen's right to speak his/her mind.
I think there was always an understanding that one could not lie about someone thereby damaging him or her, and that the government could impose penalties (observing due process) on one who broke the laws against libel or slander. Holmes appears to have loved discussion of ideas and to have recognized that ideas would be clarified and improved in the give and take of open discussion. In the context of World War I, the Congress limited freedom of speech in legislation primarily focused on stopping espionage. Holmes began with the belief that it was permissible for the government to limit speech opposed to the war effort, but came to feel that the Supreme Court should be explicit in indicating the standard to be used in deciding which speech could be limited and which must be free.
In reading the book, it occurs to me that in 1919 few would have had a good idea on how to qualify risk. Thus, one might have tried to estimate the risk of someone's speech leading to injuries or death. In today's language, one might look at the expected number of disability adjusted life years (DALYs) lost due to an utterance. That value could be quite large if for example someone revealed to the enemy the plan of attack of a new offensive on the western front. I read today that doctors in Kenya are spreading the rumor that immunization is being done with an additive to the vaccine that sterilizes the recipient; that is a speech that is likely to have a significant impact measured in DALYs. On the other hand, a person with little influence railing against a well accepted government policy might have cause negligible risk by that speech.
Of course, balancing the cost one might also consider the potential benefits of the act of speech. Holmes famously wrote that there was not right to yell fire in a crowded theater. Of course, there is no such right if there is no fire, but every right if there is a fire and alerting the audience will save lives. What if someone makes some observations which lead him/her to think that there is a probability of a serious fire in the theater, but does not lead to certainty; assume further that an immediate warning would be effective in avoiding injury and death, but waiting to be sure would lose the opportunity to do good. One could in theory again calculate the likely benefit of yelling "fire". Would that justify the yell if it proved later that there had not been a fire?
A Higher Level Risk-Benefit Analysis
What would be the cost in DALYs of each of the various standards that the Supreme Court might set for the nation as the standard became accepted and used nationwide? What would be the cost in enforcement in accordance with that standard. These would seem to be relevant for the justices to consider in setting such a standard.
On the other hand, what would be the larger cost to the nation in the limitation on free speech -- which is after all a basic freedom on which the nation was founded. How much would the public debate be affected, and the process of public policy determination hurt?
It is less than a week after the election, and this election seems to have occasioned a flood of negative advertising. Was any of this false advertising? A lot? A little? Should there be some limitation on politicians making false or misleading statements in an election campaign? Should there be a limitation on others making such statements verbally or in the media during a campaign? I don't know, but I wonder whether the judicial process has access to adequate analytic expertise to properly analyse the issue.