Freedom of Speech, 1919 and 1994: Justice Holmes After Seventy-Five Years

Abstract

Freedom of Speech, 1919 and 1994: Justice Holmes After Seventy-Five Years Richard Polenberg Something about Oliver Wendell Holmes, Jr., led acquaintances to speak about him with an awe bordering on reverence. Walter Lippmann called him “a sage with the bearing of a cavalier. ... He wears wisdom like a gorgeous plume.”1 Learned Hand referred to Holmes as “the premier knight of his time.” BenjaminCardozo, who was namedto Holmes’ seat on the Supreme Court in 1932, termed his predecessor “the great overlord ofthe law and its philosophy.” Felix Frankfurter, who even­ tually replaced Cardozo, once said, “to quote from Mr. Justice Holmes’ opinions is to string pearls.” Another devoted admirer, Dean Acheson, recalled: “His presence entered a room with him as a pervading force; and left with him, too, like a strong light put out.”2 Even now, sixty years after his death, Holmes remains a fascinating figure, the most written-about of all Supreme Court Justices. Since 1989 there have been four majorbiogra­ phies of Holmes (by Gary J. Aichele, Sheldon Novick, Liva Baker, and G. Edward White), two full-length studies of his views on free speech (by Jeremy Cohen and H.L. Pohlman), an important book of essays on his legacy (edited by Robert W. Gordon), and a collec­ tion of his writings with an introduction (by Richard Posner), not to mention dozens oflaw review articles and discussions in general works, such as the chapter on “The Place of Justice Holmes in American Legal Thought” in The Transformation of American Law, 1870-1960 by Morton J. Horwitz.3 The recent interest in Holmes is largely a product ofthe opening of his private papers for research. When Holmes died in 1935, Felix Frankfurter, then a professor at Harvard Law Justice OliverWendellHolmes,Jr., has beenthe subject of seven major books on bis life and judicial opinions since 1989—more than one hundred fifty years after his birth. 20 JOURNAL 1994 School, was given exclusive control ofHolmes’ correspondence so he could writethe authorized biography. After his appointment to the Su­ preme Courtin 1939, Frankfurterturnedthetask and the correspondence over to Mark DeWolfe Howe, a former student who had clerked for Holmes. Howe died in 1967 having published twovolumesofabiographywhichcarriedHolmes only to the age offorty. So Holmes’ new literary executor, Harvard law professor Paul Freund, selected Grant Gilmore of Yale Law School to complete the authorized biography and trans­ ferred the correspondence to him. Gilmore died in 1982 withouthavingwrittenmoreofthework. In 1985 Harvard Law School finally opened Holmes’ papers to general research; soon, a complete seventy-two reel microfilm edition ap­ peared, available to any library or scholar. The resulting scholarly literature has only whetted the reading public’s appetite, espe­ cially for information about Holmes’ most distinctivecontributiononthe Supreme Court, his two landmark decisions regarding free­ dom of speech: Schenck v. United States, decided in March 1919, in which Holmes, writing for a unanimous Court, first proposed the “clear and present danger” standard; and Abrams v. United States, handed down in November 1919, in which Holmes (and Louis D. Brandeis) dissented from a decision up­ holding a conviction under the wartime Sedi­ tion Act on the grounds that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” After three quarters of a century, Holmes’ views remain at the core of First Amendment jurisprudence, and remain, therefore, highly controversial. His Abrams dissent is com­ monly cited by those who wish to defend freedom of speech. In 1988, for example, the Supreme Court unanimously rejected Rever­ end Jerry Falwell’s contention that the publi­ cation ofan offensive cartooninHustlermaga­ zine entitled him to damages for the inten­ tional infliction of emotional distress; Chief Justice William Rehnquist’s opinion quoted Holmes’ belief in “free trade in ideas” and in the need for government neutrality in the “market place of ideas.”4 On the other hand, those who favor a more restrictive policy take direct aim at Holmes’ formulation. Among the sharpest critics are feminists who wish to make pornography illegal, critical race theo­ rists who wishto outlaw hate speech, and legal scholars who find the marketplace analogy deeply flawed. In what follows I will examine the...