By Thomas Healy, Metropolitan Books, New York, 322 pages, $28
During his long tenure on the Supreme Court (1902-32), Oliver Wendell Holmes developed a reputation as a progressive because he believed courts should defer to the will of elected legislatures which enact economic reforms. Midway through Holmes' tenure, however, progressives attacked him when such deference led him to deny free-speech rights in wartime espionage prosecutions. Stung by these rebukes, Holmes reassessed his priorities. In his new book, Michael Healy chronicles how Holmes changed his mind about the limits of free speech and breathed new life into the First Amendment. It is a compelling read.
Utilizing a trove of private papers and letters, the author describes Holmes' transformation over the 18-month period beginning in June 1918. The period was a turbulent time when the United States was torn apart by a foreign war, race riots, labor unrest, terrorist bombings, rising unemployment, fears of Bolshevism, and a flu pandemic that killed 500,000. Meanwhile, President Woodrow Wilson suffered a debilitating stroke. Paranoid and adrift, the federal government unleashed prosecutors on dissenters, regardless of whether their speech posed any realistic danger to the country.
According to the author, Holmes was an unlikely candidate to stem this dangerous tide against free speech. He was a Boston WASP, lifelong Republican, and Civil War veteran who believed in "free markets" and the "prerogatives of the ruling class[.]" Holmes had no use for radical causes, believing that "strong ideological commitments were both foolish and dangerous."
As recounted by the author, many in the United States opposed the country's entry into World War I. Fearful of obstructionists, Congress passed the Espionage Act of 1917, which prohibited interference with military operations and recruitment during wartime, and the Sedition Act of 1918, which outlawed the expression of opinions that cast the government in a negative light.
Armed with these statutes, prosecutors earnestly targeted socialists, labor union advocates, members of certain immigrant communities (particularly Irish and German), and other protestors. The author does a creditable job in surveying the landscape of these prosecutions, most of which were against defendants who had few resources and little influence.
Several of these convictions were appealed to the Supreme Court on free speech and other grounds. As described by the author, Holmes was inclined to affirm the convictions but, in two instances, issued influential dissenting opinions. To enrich the narrative, the author has included salient details from his exhaustive research of the various trial and appellate records.
The first of the two Holmes dissents came in Baltzer v. United States. The case involved the prosecution of 27 German-American socialists from a South Dakota farming community who protested the high draft quotas in their county. Soon thereafter, they were convicted and sentenced to prison terms. The case troubled Justice Louis Brandeis, who visited Holmes and urged that he dissent. In Brandeis' view, toleration, not recrimination, was called for. Persuaded, Holmes then drafted a one-paragraph dissent that urged tolerance. A champion of brevity, Holmes believed that judicial opinions, like art, should contain only what is necessary.
Word of Holmes' draft dissent then made its way to the Justice Department. The author conjectures the draft was leaked by Brandeis, who had several close contacts at Justice. Spooked by the draft, Justice responded by confessing error and urging that the case be remanded to the trial court, where the charges were later dismissed. Thus, the Supreme Court never actually decided Baltzer, and Holmes' influential draft dissent remained hidden in his papers for the next 70 years.
Over the next several months, Holmes wrote the majority opinions in three cases that affirmed the convictions of Espionage Act defendants. The more prominent of these were the Schenck and Debs cases. The Schenck defendants were Philadelphia socialists who had distributed an obscure leaflet opposing the draft. Writing for the majority, Holmes stated that the right of free speech is not absolute, depends on context, and can only be abridged if it presents a "clear and present danger" to bring about the evil that Congress had sought to prevent. Despite this language, however, Holmes' opinion upheld the convictions.
The Debs case involved Eugene Debs, the fiery labor organizer and leader of the Socialist Party. In June 1918, Debs delivered a public speech that supported the St. Louis Declaration, an antiwar statement that socialists had issued in 1914. Soon thereafter, Debs was convicted of violating the Espionage Act. When the case reached the Supreme Court in 1919, Holmes wrote the majority opinion that affirmed Debs' conviction.
These affirmances outraged progressives and radicals alike. Holmes suddenly became the subject of criticism by respected law professors. Moreover, in April 1919, Holmes was targeted by a bomb plot. Shaken, Holmes left at the end of the term for his Massachusetts home and a summer of rest, reading, and relaxation.
It would prove to be a consequential summer. As expertly recounted by the author, one of Holmes' closest friends was Harold Laski, the Harvard economics professor who summered near Holmes. Laski was like a son to the childless Holmes and loved to discuss politics, especially the eroding right of free speech. Holmes reveled in their debates and dutifully read the many books that Laski was constantly lending him.
At Laski's suggestion, Holmes reread "On Liberty," by John Stuart Mill, the English philosopher, whose ideas on free speech urged tolerance and the consideration of all points of view. Holmes also read at Laski's suggestion a biography of Adam Smith, the Scottish economist, who believed not just in free trade, but also in political liberty and free speech. Finally, Laski suggested that Holmes read a recent article in the Harvard Law Review by Professor Zechariah Chafee, who decried that Holmes had devised a proper free speech test in Schenck, but then had inexplicably refused to discuss how the Philadelphia socialists' obscure leaflet could have possibly posed a "clear and present danger."
When Holmes returned to Washington in the fall of 1919, the Court heard argument in Abrams v. United States, an Espionage Act case against Russian anarchists who had distributed leaflets criticizing Wilson's budding plan to invade Russia. Heeding the many entreaties he had received from Brandeis, Laski, Chafee, Professor Felix Frankfurter, and Judge Learned Hand, Holmes drafted a dissent that applied the "clear and present danger" test he devised, but had failed to adhere to, in Schenck. Healy notes that the draft dissent so unnerved three members of the majority that they visited Holmes at home in the attempt to persuade him to abandon it.
As ably posited by the author, Holmes' dissent gave rise in the years to come to the development of a rational principle marking the limits of constitutional protection. Courts now had the guidance needed to check the rising tide of censorship. And the public had the means to guard their "vital privilege."
Jeffrey Winn is a partner at Sedgwick.