Was anyone really surprised in March 2011 when the Supreme Court, by an 8-to-1 margin, sided with the Westboro Baptist Church in Snyder vs. Phelps, upholding the right of church members to picket at the funerals of fallen soldiers while displaying anti-gay slogans?
Snyder was little more than a quick blip because we’ve grown accustomed to such decisions. Whether the court is defending the right to burn the American flag (Texas vs. Johnson, 1984); protecting scabrous satire (Hustler Magazine Inc. vs. Falwell, 1988); or striking down laws against child pornography (Ashcroft vs. Free Speech Coalition, 2002), the justices tend to give ever-wider latitude to free speech.
But it was not always so. Until well into the 20th century, free-speech cases rarely landed on the court’s docket. Indeed, it wasn’t until 1925, in Gitlow vs. New York, that the court extended the First Amendment’s protections of free speech and free press to the states.
The enshrinement of free speech as the definitive American value began with a series of cases the court tackled just after World War I, at which time its reigning intellectual light was Justice Oliver Wendell Holmes Jr. But as the war approached, the staunchly conservative and aristocratic Holmes was anything but a free-speech firebrand. Following English common law, he was content to apply the highly elastic “bad tendency” test, asking whether the speech in question was likely to offend genteel citizens or undermine respect for elected officials. If so, the speaker could be punished — even if the statements happened to be true.
So how did Holmes become a First Amendment icon? As chronicled by Thomas Healy, a Seton Hall law professor and former Supreme Court reporter for the Baltimore Sun, Holmes underwent a late-life conversion as the court dealt with several cases stemming from the 1917 Espionage Act, which essentially made it a crime to say or do almost anything that could be seen as impeding America’s war effort.
These pre-Abrams cases were Schenck vs. U.S., Frohwerk vs. U.S. and Debs vs. U.S., all unanimous decisions against the defendants for violating the Espionage Act. In Schenck, Holmes first posed the groundbreaking “clear and present danger” test, though he failed to see, Healy explains, that the defendants’ penny-ante leafleting posed no clear and present danger to the American war machine.
Nor did Holmes plant the free-speech flag in the subsequent Frohwerk case or the Debs case, in which he voted to uphold Socialist Party leader Eugene V. Debs’ prison sentence for praising draft resisters.
Then, eight months later, came the startling dissent in Abrams, in which four Russian radicals were convicted for protesting Woodrow Wilson’s decision to send American troops into Russia after the 1917 Bolshevik Revolution. This time Holmes fully embraced his clear and present danger test, declaring that the defendants “have as much right to publish as the government has to publish the Constitution.” And, in a brilliant conclusion, he applied the insights of John Stuart Mill and Adam Smith’s economic reasoning to the First Amendment: “... The ultimate good desired is better reached by free trade in ideas ... the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
Healy admits that he cannot pinpoint the exact reason for Holmes’ change of mind, but he astutely describes a constellation of influences working on the 78-year-old justice — some strictly intellectual, some a reaction to the Red Scare period, some born of his deep relationships with younger comrades like the magnetic Socialist gadfly Harold Laski and federal judge Learned Hand. In The Great Dissent, readers who care about the cherished right of free speech will learn just how it got so free.
Chris Tucker is a commentator for KERA-FM (90.1) and a teacher in Richland College’s Emeritus program.
The Great Dissent
How Oliver Wendell Holmes Changed His Mind — and Changed the History of Free Speech in America
(Metropolitan Books, $28)