How do ideas change in the law?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. First Amendment, Constitution of the United States of America

 I have just read The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America by Thomas Healy. The dissent in the title was one in which Holmes, a Justice of the Supreme Court, dissented from a majority decision letting the conviction of people for an act of speech; instead he called for a broadening of the rights of free speech guaranteed under the first amendment.

Oliver Wendell Holmes Jr. was a Boston Brahmin. He had been a three times wounded soldier in the Civil War, in which he had also almost died of disease. A lawyer, he had served in the Massachusetts Supreme Court before Teddy Roosevelt appointed him to the U.S. Supreme Court in 1902. A complex man, often thought of as a conservative, but also with strong progressive leanings. Holmes would serve in the Supreme Court until 1932, but Healy's book focuses on 1918 and 1919.

The first amendment does not mean what it appears to mean to the lay person. It has always been accepted that the government had the right, indeed the duty to restrict some kinds of speech. There are laws against libel, slander, fraud, false advertising and incitement to riot. Espionage is illegal; there is no right to tell the military or diplomatic secrets of the nation to an enemy or potential enemy. There was a law against sedition in England when the Constitution was written, and a Sedition Act was made law in 1798 in the United States; that law however was severely criticized even in its own time as barring legitimate criticism of the government, and was allowed to expire in 1800; the fines levied under the Sedition Act were later refunded by the government.

The second decade of the 20th century was an uneasy one in the USA. In the election of 1912, three progressive candidates (Wilson, Taft and Teddy Roosevelt) had split the presidential vote and Socialist Eugene Debs had received 6 percent of the national vote. Not only were socialists visible in American politics, so too were Bolsheviks and Anarchists. Even before America entered the war there were German saboteurs functioning in the country (see Dark Invasion: 1915: Germany's Secret War and the Hunt for the First Terrorist Cell in America by Howard Blum). The Germans proposed that Mexico declare war on the United States (see The Zimmermann Telegram by Barbara Tuchman). American ships were sunk on the high seas, and then the United States did enter the war.

The Great War was fought from 1914 to 1918 on the Western Front, but it was the first world war with a level of casualties and deaths that exceeded all previous wars. Propaganda had charged the Germans with atrocities. And a flu pandemic stalked the world killing tens of millions of people.

The Decisions

In this environment the Espionage Act of 1917 became law as did the Sedition Act of 1918. These were quickly used to arrest, try and convict people and a number of cases arrived at the Supreme Court, beginning in January of 1919. Two issues were key:

1. Were the laws constitutional. That is did they or portions of them contravene the constitution and especially the first amendment.
2. If they were constitutional, what criterion should be used in defining whether an accused had actually contravened the law.

In the first of the cases to be decided (Schenck v. United States) Holmes wrote the unanimous opinion. I quote a section from that opinion:

We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done........ The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.......... The question in every case 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. When a nation is at war, 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. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. 

This opinion defends the right of the Congress to pass this law, and suggests that creating a "clear and present danger" is a standard for decision as to whether someone has contravened the law or not. The judgment of the lower court was affirmed.

Less than a year later after several other cases, in Abrams v. United States, wrote a dissent. I quote from that opinion:

I am aware, of course, that the word intent as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. ......... 

But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. 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. Congress certainly cannot forbid all effort to change the mind of the country. 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....... 

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. 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, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. 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. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. 

He states, disagreeing with the majority, that "the defendants were deprived of their rights under the Constitution of the United States."

This dissent was disliked by many and cheered by a few when it was written, but by the 1940s a more liberal Supreme Court came to make it the basis for U.S. interpretation of the first amendment.

How Holmes Changed His Mind

Healy does a remarkable job of describing how Holmes' ideas evolved, drawing on letters, and diaries. He cites the key law journal articles and discussions with Learned Hand (another judge who handled one of the early cases in a lower court), Harold Lasky and Zackariah Chafee. He identifies the books Holmes read during 1919, especially those suggested by Lasky.

He can not, of course, discuss what went on in the secret meetings of the members of the Supreme Court. Nor does he go into much detail about the briefs and oral arguments related to the cases.

Of course, especially in our system, the law evolves through decisions on specific cases, and Healy is quite good at describing the details of those cases. We read that the conviction of Eugene Debs, a nationally known man who received millions of votes for president in 1912, was seen as much more serious than that of some Russian immigrants who printed a flyer advocating a national strike in arms and munitions factories and tossed copies from rooftops.

The end of World War I saw empires falling, monarchies dethroned. It was a war that evolved from secret treaties made by a thin ruling class in the countries of Europe. Americans had entered that war with an explicit objective of "making the world safe for democracy". The map of Europe was being redrawn to give nationalities the right of self determination. Perhaps that environment too encouraged Justice Holmes to see better the virtues of free speech and the dangers of the suppression of dissent.

I found myself wondering if author Healy did justice to the unusual qualities of Justice Holmes himself. Holmes was a man who like to discuss ideas. He was also aware that the law changed, and that it was through the scholarship and analysis of men like himself that the law evolved. He may have believed (probably did believe?) that as a general principle the most credible ideas emerged from civil and reasoned debate in "a marketplace of ideas". Holmes was a legal scholar of considerable repute, and I suspect that he was the most likely member of the court to promulgate this new standard in a dissent.

Healy writes about Holmes' travel, his walks, his vacations, his secretaries, and his wife's ill health. By the nature of his text, suggests that living in the world itself leads to changes in the way we think. The American participation in the war ended with the Armistice on 11/11, 1918, so the war thinking was much further in the past in November 1919 than it had been in the winter of 1918; Holmes had spent the intervening summer at his summer home on the Massachusetts coast. Moreover, federal, state and local government censorship of radical thought had increased greatly in 1919. Moreover, his friends Lasky and Chafee had been the victims of efforts to infringe on their academic freedom at Harvard University where both were faculty members. I would suggest that many factors combined as Holmes changed his mind about the right of the Congress to limit speech in times of war and the criteria to be used in determining guilt or innocense.

In his landmark dissent, Holmes was joined by Justice Louis Brandeis. There were subsequent dissents, joined by other justices over the years, until in the Franklin Delano Roosevelt era Holmes's view became the majority view. Still, the Supreme Court decisions on freedom of speech can be divided and controversial, such as was the recent Citizens United decision.

Final Comments

I found this a very stimulating book. It deals with important questions: How do men in power come to change their minds on important issues? What kind of man can do so at all? I think the example in this case -- of one judge, followed by another more influential judge, followed by others -- is very useful for the reader to to know and understand.

I would point out that censorship is still with us. Yesterday I came across this article suggesting that The Adventures of Huckleberry Finn by Mark Twain, The Scarlet Letter by Nathaniel Hawthorne and A Farewell to Arms by Ernest Hemingway are even today being blocked by officials in Texas who wish to limit what students can think and read.

Culture wars are being fought today. There are those in Congress who would reduce funding for research on climate change, the danger from firearms and political science because they fear that they might not like the results of such studies. There are those who would promote the study of creationism in schools and a mythical history of the USA rather than a more accurate one, because they are afraid of the marketplace of ideas. The Great Dissent should encourage us to question such policies.