The Great Dissent: How Oliver Wendell Holmes Changed His Mind -- And Changed the History of Free Speech in America
US: Sep 2014
In June of 1918, Oliver Wendell Holmes, Jr.—distinguished lawyer, Civil War veteran, and now justice of the Supreme Court of the United States of America—boarded a train for his Boston summer home. On this train he encountered one of his colleagues, the magnificently named judge Learned Hand, and engaged in a brief, awkward discussion about one of Hand’s recent cases. Judge Hand, known for his liberal views, wound up in an argument with Holmes, who had little inclination for the sort of liberal tolerance toward speech that Hand was espousing. The chat was short, but followed up with correspondence, and the intellectual impact of that encounter – in combination with other events that transpired throughout the ensuing year and a half – was to have a profound impact on the history of American civil rights.
Holmes issued a progressive, dissenting opinion 17 months after that initial encounter, an unexpected move given his previously conservative take on free speech. This opinion came to be in a case that has since become a legendary statement in defense of the right to free speech in America.
Holmes was the minority in that subsequent case, a freedom of speech case involving a group of Russian anarchists who had called for action in opposition to the ill-fated American military intervention in the Russian Revolution. The majority on the Court upheld their conviction. But as his colleague Judge Hand would write to him later, Holmes’ dissenting opinion would prove one of those cases where a brilliant and open mind “formed the law by a minority opinion” This dissent helped popularize such now-familiar phrases as “clear and present danger” and “free trade in ideas”.
Thomas Healy’s masterful book The Great Dissent: How Oliver Wendell Holmes Changed His Mind—And Changed the History of Free Speech in America tells the story of how this dissenting opinion came about, and how Holmes made such an about-turn from status-quo upholder of government’s right to suppress speech, to progressive defender of the right of everyone, radicals included, to the First Amendment. Make no mistake: this is no dry legal text. It’s a colourful, beautifully written narrative that paints a vivid portrait of the political, intellectual and even social atmosphere of early 20th century America in that pivotal period during and immediately after the First World War. The book accomplishes many tasks at once, which is surprising when one considers the ease of style and compelling lure of the narrative.
Historically, it gives vivid life to a period known only faintly to many of us. Today, it is the veterans of the world wars whose politics and experiences have shaped the world in which we live. Fewer and fewer of them remain while a complicated uncertainty of austerity politics, terrorist hysteria, surveillance state, and confusing wars with no hint of morality define our fears for the future. A century earlier, it was veterans of the American Civil War, like Holmes himself, who had shaped America all the while disappearing one by one. These veterans’ worldview was met by a strange new world of industrial conflict and Bolshevik fears that gripped those who allowed hysteria to shape their politics.
Healy brings this world alive in all its dimensions. From vividly described vistas of a Capitol City whose streets were undergoing rapid transformation, to the leisure joys of art gallery visits and summer holidays, to the brutality of industrial strikes, Healy finds opportunity to depict this world at every turn. The elegance of his writing is rare enough for a historian; more remarkable yet for a professor of law.
Yet even more profoundly, it conveys an evocative sense of what law is: of its potential, its malleability, its uncertainties and shortcomings and profound accomplishments. This is law at the service of humanity: shaped by political beliefs, historical circumstance, and human emotion: greed, fear, idealism, conviction. The changing nature of law in response to changing times and changing values, and its sometimes difficult compromise between idealism and utilitarianism are not portrayed as a flaw, but rather as an accomplishment of human civilization. This accomplishment is the juncture at which the brute force embodied in governmental power willingly gives way to the prospect that through reason and deliberation it is possible for humanity to arrive at greater truths and more worthy achievements.
The law often comes in for a beating in this day and age, from those activists who feel it is too impassively and heartlessly objective as much as from those advocates of judicial restraint who consider it a blind servant of whatever interests they are opposed to. Healy accomplishes the unlikely result of breathing back inspiration and hope into the belief that law can be shaped to serve higher and lofty ends.
The scholarship here is impeccable, and it’s no surprise the book is already winning awards. The dedication and effort of scouring obscure reports and notes, unpublished legal opinions, and personal correspondences must have been prodigious. Some letters and documents were unearthed to be presented in this book for the first time. Through these efforts, Healy offers up a masterful psychological portrait of one of America’s great thinkers in the process of exercising his mind and judgement.
The surgical detail with which Healy charts the trajectory of Holmes’ thinking is truly remarkable. He juxtaposes the legal opinions Holmes writes against his correspondence with friends, forming a seamless narrative between the two bodies of documentation. This, in turn, is laid against a broader backdrop in which his colleagues are facing persecution for their liberal views. J. Edgar Hoover arrives on the scene, and persecution against workers’ movements and liberal college professors is unleashed in the wake of the Russian Revolution.
It’s an era in which profound and important debates rage in the journals and magazines which constitute the public forum of the era. Healy even follows Holmes’ reading material, also meticulously documented, to indicate how the books Holmes was reading, which were often foisted on him by his more liberal activist colleagues, shaped particular turns of thought that emerged in his judgements.
Throughout this incredibly detailed process, never once does the narrative become boring or dry. How Healy manages to excite the reader with the daily habits and reading material of a 78-year old man in the early 20th century is a true miracle of prose technique and virtuosity.
The other accomplishment of the book, of course, is to present and analyze Holmes’ contribution to debates around free speech: what is the purpose of free speech, what is its proper role in the American democratic system, under what circumstances ought it to be suspended, or subsumed under other priorities such as national security? Healy renders the complicated history of free speech and tolerance underpinning this narrative both accessible and exciting.
While the book, as well as Holmes’ judgement, engages with issues that are as fraught today as they were a century ago, it still focuses on the law at the particular historical juncture of the post-war period. Nevertheless, it was an important and critical juncture – and one which is important to understand if we are to engage in fully informed debates about the issue today.
The turn which Holmes’ later thinking took suggests that an expansive belief in free-speech requires not so much a sense of liberal indulgence, but rather a staunch and firm sense of courage. Conviction in one’s beliefs requires us to allow them to be challenged by others. No matter how repulsed or fearful opposing views might make us feel, we cannot be sure of the rightness of our own views unless we allow the free airing of those we oppose. If we don’t, then we’re cheating, upholding a system of beliefs not through its superiority of ideas, but through its forceful silencing of everyone else.
None of us know with full certainty whether what we do is the right thing to do and whether what we believe is true. This cannot and should not prevent us from acting based on our beliefs, but those beliefs can only be held with conviction if we know that other, opposing beliefs are free to challenge them. Other beliefs and ideas, possibly better ones, ought not be suppressed and hidden from us. This is the best route toward achieving the greatest good.
And certainly, the state, ostensibly a democratically elected government representing the majority opinion, has the right to take action against speech that threatens the country. This cannot happen, however, if that threat is only a possible threat. Government intervention occurs in the greatest of emergencies, when there is a clear and present danger to the country’s very existence posed by those words.
Such, at least, is what Holmes eventually concluded. But it’s a conclusion rendered even more fulfilling and comprehensible when the reader is able to share in this unfolding understanding of the importance of free speech, and to follow Holmes’ own internal debates on the matter, along with the public debates that swirled around him. Thanks to Healy’s hard work this is now possible and accessible to a wide audience.
It’s an important time for a work such as this. As Healy observes in what is probably the closest he comes to openly editorializing, Holmes’ dissenting opinion would prove fundamentally important not only to the political environment of his era, but “perhaps most importantly to later generations who may, in their own moment of crisis, be tempted to sacrifice the principles of freedom to the cause of hysteria.”
Healy has produced a tremendous work of scholarship, one that is a delightful pleasure to read, but also one that is important. This study provides invaluable and important lessons to a broad audience, from scholars of the law to members of the public. Most significantly, works such as this serve as a contribution not only to our individual pleasure and education, but to enhancing and strengthening the quality and fibre of our democratic society.
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