The Great Dissent

How US Supreme Court Justice Oliver Wendell Holmes changed his mind – and a nation – on the question of freedom of speech.

This absorbing book is about the law, which for all its grandeur is a moving target. It also is about change, how one man’s thinking evolved nearly 100 years ago – and how we are all better for it. In 1919, US Supreme Court Justice Oliver Wendell Holmes was 78 years old, still thinking long and hard about doing the right thing – and wondering if he had done it.

Holmes devoured books that challenged his thinking and listened carefully to people who didn’t agree with him. He didn’t dismiss their arguments out of hand. He gave them consideration. He didn’t stay the course unthinkingly, or dig in his heels, or raise his voice. In the end, he changed his mind, and a nation in the bargain.

Law professor Thomas Healy’s first book, The Great Dissent: How Oliver Wendell Holmes Changed His Mind – and Changed the History of Free Speech in America, is a vivid account of the social, political, and intellectual undercurrents that affected early 20th-century lawmaking. The law, the author’s narrative demonstrates, is not always a rational and logical thing, but the product of emotion, experience, and personal relationships.

Healy ably shows that Holmes, Supreme Court Justice from 1902-1932, was once opposed to freedom of speech as we know it today. And so were many of his fellow citizens.

Stare decisis at the time, borrowed from British practice, was that you could speak and publish freely without fear of prior restraint, but once you had spoken, the state had the freedom to prosecute you.

The First Amendment to the Constitution, which states that “Congress shall make no law … abridging the freedom of speech, or of the press,” didn’t carry much weight with Congress, prosecutors, judges, or jurors back then. The Sedition and Espionage acts passed during World War I became powerful tools to go after unpopular speech, groups, and individuals.

The government was already in the habit of deciding who had been too free with their speech. In 1907, Holmes wrote the majority opinion that upheld a fine imposed on a newspaper for criticizing a Colorado Supreme Court ruling. This example of "illegal speech" dealt with the kind of discourse that we routinely accept as normal press coverage today. At that time, however, the standard for what constituted illegal speech – words that might incite others, directly or even indirectly, to disrupt the peace and security of the nation – was vague and often whimsical. Many people were charged, convicted, and jailed for trivial “offenses.” 

Many Americans were prosecuted for opposing the war in Europe, intervention in Russia, or being critical of the draft.  Those prosecuted ran the gamut from an obscure couple printing leaflets in their basement to former Presidential candidate Eugene Debs, who got 10 years for making a speech touting socialism, which was not a crime. But Holmes agreed with the lower court ruling that Debs’s fervent opposition to the war had encouraged his listeners to obstruct the draft (in theory, since no evidence of overt acts had been presented). The ruling caused a furor. Debs was elderly and in poor health. (President Harding would commute his sentence in 1921).

Holmes argued with his younger, more liberal friends and colleagues that as a matter of self-preservation the government could and should go after people that challenged it. In private, he indelicately termed this sovereign power “the sacred right to kill the other fellow when he disagrees."

But as more free-speech convictions came before the Supreme Court – and the likes of Harvard professor Harold Laski respectfully, and artfully, questioned their rationale – Holmes began to waver. He freely admitted, again in private, that prosecuting some of these cases had not been wise. He went so far as to confess that in at least one case which he upheld, he likely would not have voted to convict had he been on the jury. But, as the law was then understood, the judge and jurors had done their duty and he was loath to overrule them.

What had been largely a theoretical exercise became personal when Holmes's friend Laski came under attack for supporting a strike by the Boston police union. Speaking freely, Laski had put his career, perhaps even his freedom, in jeopardy, and he appealed to Holmes for help. Holmes demurred, but his friend’s situation weighed upon his mind. In wake of World War I, and with revolution abroad and anarchists and socialists proselytizing at home, Americans had become fearful, and quick to judge others.

What Oliver Wendell Holmes set in motion in late 1919 would take time. He was outvoted 7-2 in the landmark case against five anarchists, but his change of heart on freedom of speech came through loud and clear. In a nod to his previous stance, he wrote in his dissent, “Persecution for the expression of opinions seems to me perfectly logical.” Then he went on to assert, “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.”

Don’t be so afraid, Holmes was counseling his fellow citizens: The truth will out eventually. So towering was Holmes’s stature that his seven colleagues in opposition worried that they had won the battle but would eventually lose the war. In this, they were correct.