Holmes’s footprint on the American law of free speech is gigantic. Like Atlas, he is a titan in that world. No one else quite casts a shadow so long. While James Madison is the grand pater of the historical First Amendment, its modern father figure is surely Justice Oliver Wendell Holmes, Jr. (1841-1935). His thought can be found in bold relief in many Supreme Court opinions on freedom of expression, in every contemporary history of the subject, in every casebook and textbook used in law schools and in colleges, and in every serious scholarly treatment of the matter. This is so because “Holmes laid the foundations . . . for the expansive modern view of free speech . . . .” Having done so, he then “left a profound imprint on the law of free speech." Without exaggeration, then, it would be impossible to have any serious discussion of modern free speech theory or law without some consideration of his views.
But from what well does Holmes’s fame spring? Does it derive mainly from three opinions – Schenck v. United States, Abrams v. United States, and Gitlow v. New York – issued late in the long-life span of this great jurist and scholar? If so, did the ideas for those landmark opinions jet out of his psyche with a singular thrust of insight, or were there some seeds that had been stirring in the soil of his mind for years or even decades before? As with so many other great figures in law, the answer is a combination of both, and yet other things, too.