AuthorInazu, John
PositionSupreme Court Justice Oliver Wendell Holmes Jr. - Contemporary Free Speech: The Marketplace of Ideas a Century Later


Justice Oliver Wendell Holmes's dissent in Abrams v. United States is one of the intellectual anchors of modern First Amendment doctrine. (1) In that opinion, Holmes sets out two core aspects of his free speech jurisprudence: his pragmatic concern about majoritarian control and his quasi-libertarian preference for the "competition of the market." (2) In the century since Abrams, we have witnessed changes in society, technology, and politics that have shaped and reshaped the contours of our First Amendment landscape. But not everything has changed--some aspects of our human experience remain remarkably similar to the context in which Holmes wrote.

One unchanged aspect of the human condition is our inability to know with certainty. (3) Confronted with this reality in his own day, Holmes, at times, gestured toward a foundationless relativism. (4) But even if his larger corpus hints toward that direction, his Abrams dissent can be read to sketch a less skeptical approach rooted in a kind of epistemic humility. (5) This interpretation enlists Holmes as an advocate for more charitable discourse across deep differences. (6) In today's pluralistic society, acknowledging our lack of certainty can help us move toward better dialogue with one another. At a time when we too often sacralize our own views and condemn our opponents, epistemic humility could help our society avoid escalating from weaponized words to actual weapons. This is no small matter. Holmes knew firsthand the reality of violence, having watched friends die in the Civil War and having himself been wounded three times in battle. We are nowhere close to that kind of violence, but we should not think it unimaginable. As philosopher Alasdair Maclntyre has quipped, "[m]odern politics is civil war carried on by other means." (7) The less we are able to maintain civil dialogue across deep disagreement, the more we may glimpse the possibility of actual violence. (8)

This Article suggests that the kind of epistemic humility we can find in Holmes's Abrams dissent provides an important resource for preserving a stable political order. Part I offers a reading of the famous dissent that focuses on the humility underlying Holmes's epistemic claims and explains the implications of this humility for discourse norms. Part II distinguishes epistemic humility from more skeptical views. Part III then applies a lens of epistemic humility to three kinds of truth claims in contemporary discourse: claims whose certainty is not provable (focusing on the example of religious claims), claims whose practical certainty is not yet proven (focusing on the example of medical treatments of transgender children), and claims that are certain to be false (focusing on the example of demonstrable lies).


    Holmes's Abrams dissent culminates in a remarkable paragraph that appeals to the "free trade in ideas." (9) The much-discussed market metaphor stems from Holmes's belief that the "experiment" of the First Amendment requires a willingness to see the "ultimate good" in speech-protective norms. (10) In some cases, the commitment to such norms rises above our own substantive convictions, at least enough to constrain our desire to prevail at all costs. Of course, speech-protective norms will not by themselves lead to a healthy society. (11) But Holmes's intuition--at least as I have characterized it here--is that these norms will be a necessary, albeit insufficient, condition for establishing healthy dialogue and protecting dissent in a pluralistic society.

    Holmes did not always hold this view. For much of his judicial career, he regarded tolerance as simply out of reach: the solution to political disagreement was to suppress the other side. As Thomas Healy has noted of Holmes: "As a believer in society's right to impose its will on the individual, he thought persecution of dissenters made perfect sense." (12) Healy suggests that Holmes arrived at a different view in his Abrams dissent only after a sustained lobbying effort from some of his closest friends, including Judge Learned Hand and Harold Laski. (13) Just months prior to Abrams, Holmes had written the majority opinion in Schenck v. United States, upholding criminal convictions against a First Amendment challenge under the "clear and present danger" standard. (14) After reading Schenck, Hand and Laski set out to convince Holmes he was wrong by pleading their case for tolerance.

    Hand led the way, following a chance encounter with Holmes on a train. Writing to Holmes after their meeting, Hand argued for tolerance in light of uncertainty:

    Opinions are at best provisional hypotheses, incompletely tested. The more they are tested, after the tests are well scrutinized, the more assurance we may assume, but they are never absolutes. So we must be tolerant of opposite opinions or varying opinions by the very fact of our incredulity of our own. (15) Healy observes that Hand's letter clarified that "[h]e didn't mean abandoning one's convictions or refusing to fight for one's beliefs." (16) But even with our firmly held convictions, "[w]e should be tolerant of those who disagree with us because there is a chance we are wrong and they are right." (17)

    Holmes was not immediately persuaded. He wrote Hand the following week to point out that a lack of certainty is not just true of our beliefs but "is the condition of every act." (18) And yet he believed we all must act in a world without certainty and without "bother[ing] about absolute truth or even inquir[ing] whether there is such a thing." (19) This was the pinnacle of Holmes's pragmatism, which he punctuated with a harsh realism a few sentences later: "When I was young I used to define the truth as the majority vote of that nation that can lick all others." (20)

    Holmes shared Hand's letters with Laski shortly thereafter. (21) In an initial conversation with Holmes, Laski expressed a more instrumental view that we protect speech, believing that false or dangerous ideas will be discredited over time. (22) Holmes responded to Laski in a letter following their conversation:

    My thesis would be (1) if you are cocksure, and (2) if you want it very much, and (3) if you have no doubt of your power--you will do what you believe efficient to bring about what you want--by legislation or otherwise. In most matters of belief we are not cocksure, we don't care very much, and we are not certain of our power. But in the opposite case we should deal with the act of speech as we deal with any other overt act that we don't like. (23) Holmes's words to Laski forecasted his language in Abrams:

    Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. (24) Taken together, these sentences from Abrams suggest that if you are certain of the correctness of your beliefs, it makes perfect sense to crush the other side when you have the power to do so. People will only opt for tolerance in lieu of suppression under one of three conditions: (1) when they think the other side poses no risk of persuading others, (2) when the contested issue is too small to matter, or (3) when they doubt the veracity of their own beliefs or their ability to force others to comply with them. (25)

    The first two conditions are conceptually possible but highly unlikely when it comes to the most contentious issues of our day like abortion, LGBTQ rights, immigration, police violence, or gun control. Partisans on both sides of these issues are unlikely to see them as too small to matter. To the contrary, they increasingly claim a "sacred" status for their own perspective: they see a "right way" to view an issue, they refuse to permit even partial disagreement or dissent, and they cast their opponents as morally deficient. (26) Yet even in the face of such heated rhetoric, some people do change their minds, which means these same partisans recognize some risk that opposing speech will persuade others. In other words, neither of Holmes's first two conditions for tolerance seems very plausible: when it comes to the issues that most divide us, we are unlikely to conclude that our speech does not matter, and we are unlikely to decide that the issues are simply unimportant. That leaves only one option under Holmes's framework to lead us toward tolerance: doubt.

    Holmes intimates two different kinds of doubt in his reference to "your power or your premises." (27) The first kind of doubt is theoretically open to resolution: we may not know whether we have enough power to conquer the opposition, but we could find out by attempting to exert that power. The second kind of doubt is more difficult to settle: we cannot empirically prove the tightness of our moral beliefs. (28)

    There is a tendency in some circles to recoil at the latter kind of doubt on the mistaken assumption that it leads inexorably to relativism or nihilism. But not all forms of doubt are the same. For example, Professor Steven D. Smith has distinguished between "strong skepticism" and "weak skepticism" that underpin "an expression of doubt" in modern First Amendment jurisprudence. (29) Strong skepticism, which Smith attributed to scholars like Judge Robert Bork and Professor Martin Redish, questions all forms of knowledge and, in Smith's view, leads to relativism. (30) Weak skepticism is different and nonrelativistic. It acknowledges that "every decision and action, whether private or public, involves the possibility of error" but "does not drive us to despair of the possibility of knowledge." (31)...

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