The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America

• Jurisdiction: United States,Federal
• Publication year: 2021
• Citation: Vol. 88 Pg. 114
• Pages: 114

The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America88 CBJ 114Connecticut Bar JournalJune, 2014

James E. Wildes ^[*]

Thomas Healy, Henry Holt and Company, New York, NY, 2013. 322 pages.

Guarantees of free speech, as explained by the United States Supreme Court in Brandenburg v. Ohio,^[1] do not allow a state to prohibit advocacy of the use of force or of a violation of the law, "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The appellant in Brandenburg, a leader of a Ku Klux Klan group, was convicted for violating the Ohio Criminal Syndicalism statute, which the Supreme Court found unconstitutional under the First and Fourteenth Amendments.^[2] The evidence in support of the conviction included the appellant making derogatory remarks about African-Americans and those of Jewish descent, and also speaking of possible "revengeance" if the President, Congress and the Supreme Court continued to suppress the "white, Caucasian race...."^[3] The Court held that the statute was constitutionally infirm because it purported "to punish mere advocacy" and to prohibit the "assembly with others merely to advocate the described type of action."^[4] The First Amendment, as interpreted by the Supreme Court in Brandenburg, affords considerable free speech protection. Thomas Healy, in his engaging and informative book, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America, takes the reader back to a period in history when the First Amendment had little of the meaning or weight it carries today.

It is important to recall the humble beginnings of the First Amendment, as well as the fitful commitment by the United States to it over the years. The First Amendment had limited application in the early years, as illustrated by Barron v. City of Baltimore,^[5] where Chief Justice John Marshall ruled that the Bill of Rights applied to the federal government, and not to the states. Years later, after the adoption of the Fourteenth Amendment, the incorporation of the Bill of Rights through the due process clause of the Fourteenth Amendment was gradual; the First Amendment was not made applicable to the states until Gitlow v. New York.^[6] In addition, the commitment of the nation to the First Amendment has been tested time and again. Professor Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor at the University of Chicago School of Law, has observed that there have been six episodes in American history where freedom of speech has been excessively sacrificed, yet in each instance the nation's commitment has rebounded: (1) The Sedition Act of 1798 was eventually condemned in New York Times Co. v. Sullivan;^[7] (2) President Abraham Lincoln's suspensions of habeas corpus were later declared unconstitutional by the Supreme Court in Ex parte Milligan;^[8] (3) the Supreme Court's own decisions upholding the World War I prosecutions of dissenters, such as Schenck v. United States,^[9] were all effectively overruled over time; (4) the internment of Japanese-Americans during World War II has been the subject of government apologies and compensation; (5) the Supreme Court's decision in Dennis v. United States^[10] sustaining the convictions of the leaders of the Communist party has been the subject of criticism, as have the loyalty programs and legislative investigations of the same time period; and (6) the efforts of the United States government to interfere with antiwar protests during the Vietnam War have been...