ASSOCIATE JUSTICE OLIVER WENDELL HOLMES'S GREAT DISSENT

Thomas Healy, The Great Dissent: How Oliver Wendell Homes Changed His Mind--and Changed the History of Free Speech in America (New York: Metropolitan Books, 2013) ("So when the Court heard arguments in the anarchists' case, few people expected Holmes to side with the defendants. But something had changed. Instead of voting with the majority, Holmes said the convictions should be reversed. The defendants had no intent to undermine the fight against Germany, he explained. They were merely upset with President Wilson's decision to intervene in the Russian Revolution. Besides he argued, their speech was protected by the First Amendment. This last point was no small matter. . . . The Supreme Court itself had never ruled n favor of a free speech claim, and lower courts had approved all manner of speech restrictions, including the censorship of books and films, the prohibition of street speeches, and assorted bans on labor protests, profanity, and commercial advertising. . . But now, with the country gripped by fear of the communist threat, Holmes was proposing something radical: an expansive interpretation of the First Amendment that would protect all but the most immediately dangerous speech. His opinion was passionate and powerful, especially the long concluding paragraph. This began strangely, incongruently, as though Holmes were making the case against free speech, not for it: . '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 aways 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--' Then, just as the reader began to blink in confusion, wondering if something had gone wrong, if perhaps the printer had made an error, Holmes suddenly--brilliantly--changed directions: 'But when men have realized that time has upset many fighting faiths, they may come  to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution, It is an experiment as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge, While that experiment is part of our system I think that we should be eternally vigilant against attempt s to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.' No one else on the Court write like this. Only Holmes could translate the law into such stirring, unforgettable language."  Id. at 3-4. Were one to have your typical law students read Holmes's dissent in Abrams, denuded of anything indicating its author or that it is a court opinion, would post-9/11 law students object to it, thinking it unpatriotic, unAmerican, naive, harmful to the country's efforts in the so-called counterterror war, etc.? Sad to say, but I think they would. Notwithstanding their assertion of individuality, they are majoritarians . . . and sheep. As long as it does not inconvenience them--that is, as long as it is not their own speech being restricted--, taking away liberties is no big deal. They are less likely to be defenders of civil liberties, than prosecutors against those asserting those liberties. On another note. As a law student my classmates would talk about who were their favorite judges. Mine were Holmes and John Minor Wisdom. To have informed favorites required one to have actually read a substantial body of that judge(s) opinions. The typical law students today do not do that; they are not required, ask, or expected to do that. Perhaps they still do at the elite law schools, but most law students are not at elite law schools. And the non-elite law schools have devolved into trade schools, catering to the short-term needs of a very anti-intellectual, anti-historical, practicing bar. The practicing bar, with a few exceptions, is unlikely to see the merit (that is, the instrumental value) of a prospective hire having taken a seminar on Oliver Wendell Holmes. We are is the dark ages of legal education.).