Falsely Yelling Fire, Clear Present Danger, and Idea Market: Oliver Wendall Holmes Jr, born 1841 March 8th

Justice Holmes courtroom is going to the dogs.

Oliver Wendell Holmes, Jr. was born in Boston on March 8, 1841. The justice is remembered today primarily for his dissenting opinions arguing that judges should not impose their policy preferences by finding unwritten rights in the Constitution. But Holmes spent the prime of his life in the library researching the English common law — and his most important takeaway was that judges had always made the law on the basis of their policy judgments.

Revered for his contributions to First Amendment jurisprudence, Holmes nonetheless denigrated those whose views he would protect as “poor and puny anonymities.” He insisted that “persecution for the expression of opinions seems to me perfectly logical.” He defended free speech as “an experiment, as all life is an experiment.”

Injecting science into the law and elegance into his prose, Holmes wrote that the law “is forever adopting new principles from life at one end, and it always retains old ones from history at the other.” It is not “a brooding omnipresence in the sky” but rather something that keeps pace with the “felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men.” The law, in Holmes’s view, is a balancing act: It evolves and adapts and at the same time always endeavors to get things right.

We may disagree with Holmes on some decision. But in the end, there is something grand about the man. He was a seeker who strove to make the law just—or as just as possible in a fallible world populated by fallible people. He saw America as an unfinished experiment to which he was committed, and he viewed himself a pragmatist, and not in today’s sense of someone who wants to duck ideological fights or labels but rather as someone who endeavored to read the law realistically and with honesty and caution.

Holmes began to take on the role of activist civil libertarian with two sedition cases that originated in the United States’ involvement in World War I. In Schenck v. United States (1919), Holmes delivered the majority opinion upholding the conviction of socialist Charles Schenck, who had been charged with violating the Espionage Act of 1917 by attempting to discourage draftees from responding to draft notices.

Later that same year, in Abrams v. United States (1919), Holmes dissented, along with Justice Louis D. Brandeis, when the Court upheld the convictions of five petitioners also charged under the Espionage Act of 1917. In his dissent, Holmes stated that the principle of free speech remained the same during war time as in peace time; he reiterated his belief that congressional restraints on speech were permissible only when speech constituted a “present danger of immediate evil or an intent to bring it about.”

Holmes did not believe his dissent in Abrams was inconsistent with his opinion in Schenck. In any case, it was Holmes’s dissenting opinion that ultimately came to shape our understanding of First Amendment rights. Holmes’s opinion in Abrams (which was joined by Justice Louis Brandeis) helped to reframe how the First Amendment would be understood thereafter. Even writing a dissenting opinion, Holmes lent his prestige and eloquence, which had an enormous impact on all subsequent discussions of free speech.

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