How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America
May 13, 2013
Seton Hall law professor Healy traces the evolution of the iconic United States Supreme Court Justice Oliver Wendell Holmes’s understanding of the U.S. Constitution’s First Amendment in this excellent work of history and legal scholarship. The author masterfully depicts the transition from Holmes’s limited view of First Amendment protections to an expansive, eloquent, and precedent-setting interpretation. In one of the landmark dissents in Supreme Court history (in the 1919 case of Abrams v. United States), Holmes said that the “ultimate good desired is better reached by free trade in ideas”; that sentiment has since become a bedrock of American jurisprudence and culture. The story of Holmes’s change of heart and mind unfolds gracefully, and features fellow justices, the legacy of John Stuart Mill, legal scholars, and social critics, all of whom provide the intellectual raw material that lead to the great jurist’s conversion. Along with clear explanations of the legal theories at play, the author provides context to Holmes’s decision with informative descriptions of the historical events of the time and insightful forays into Holmes personal psychology. This is a fascinating look at how minds change, and how the world can change in turn. 8-page photo insert. Agent: Ryan Fischer-Harbage, Fischer-Harbage Agency.
Starred review from June 1, 2013
The writings of Supreme Court Justice Oliver Wendell Holmes are the basis of today's interpretation of freedom of speech, but it took many great minds to convince him of its value. Seton Hall Law School professor Healy tells the engrossing tale of how it happened. In his debut, the author traces the evolution of Holmes' opinion away from the view that you may say what you like, but you will be liable for prosecution. Holmes could not accept that the right of free speech was absolute, and he sought to define its limits. Those who influenced him were the best intellects of the time, including Justice Louis Brandeis and future justice Felix Frankfurter. The author deftly follows the progression of Holmes' changing view without descending into incomprehensible legalese. Justice Learned Hand's decision in Masses Publishing Co. v. Patton (1917) was the first step in convincing Holmes that unacceptable views could be tolerated, and Harvard instructor Harold Laski, as near a son as possible, was the greatest influence on the justice. Laski, along with Zechariah Chafee and Herbert Croly, were in the vanguard of those who fought against the persecution of dissenters instituted by the Espionage Act of 1917 and the Sedition Act of 1918. These two acts produced the cases that would completely change interpretation of the First Amendment. Holmes' opinions, especially in Schenck (1918), show his growing recognition that only a "clear and present danger" can curtail freedom of speech. It was when he wrote his dissent for Abrams (1919) that he truly outlined the free marketplace for ideas and defended our right under the Constitution to express an opinion. An exceptional account of the development of the Constitution's most basic right and an illuminating story of remarkable friendships, scholarly communication and the conservative justice who actually changed his mind.
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May 15, 2013
A longtime skeptic of individual rights, Supreme Court justice Holmes wrote in 1919 the court opinion that solidified free speech rights in American political doctrine. Holmes' change of heart has long been pondered by legal scholars and historians. Drawing on newly uncovered letters and memos, legal scholar Healy recounts Holmes' long, slow process of advocating for free speech at a time of great national turmoil. WWI had recently ended, but the nation faced bombings and explosions, race riots, and the fear of anarchists. The aging Holmes had developed close relationships with several young progressives who challenged his thinking and ultimately changed the way Americans view the First Amendment. Among the persuaders were Learned Hand, then a federal judge, and Harold Laski, then a Harvard professor and contributor to the New Republic. Healy offers a beautifully written history, capturing the lively and passionate debate as Holmes came to see the abiding imperative of free speech and defend it at great cost to his own reputation at the time.(Reprinted with permission of Booklist, copyright 2013, American Library Association.)