Our Proudest Boast

Abstract

It took 88 years to return to an old but proud principle of free speech law, one that was first announced in a little remembered dissent by Justice Oliver Wendell Holmes. That principle recently found noteworthy expression in Justice Samuel Alito’s opinion in Matal v. Tam (2017). For it was in that case that the Court harkened back to Justice Holmes’s dissent in United States v. Schwimmer (1929). This was Holmes's last free speech opinion. Notably, it was not a constitutional case, but rather a case involving an immigrant. Yet Holmes took the occasion to announce a broad new principle that would, in time, blossom into a major tenet of our free-speech jurisprudence – the need to protect the speech we hate. According to Holmes, this principle is not limited to citizens but applies to all those living in the United States. Holmes managed to do all this in 634 scant words. There is evidence that Brandeis played a role in spurring Holmes to write this dissent. But the circumstances of Holmes's life – the loss of his wife, the realization that his long career and life were coming to an end – also helped shape an opinion that is the antithesis of the values Holmes championed as a Justice: judicial restraint, a value-neutral jurisprudence and personal detachment from the facts of his cases and the people whose lives they affected. Schwimmer was the one case where Holmes showed a touch of humanity that was otherwise absent from his judicial work. As applied to the narrow facts of Schwimmer, the Supreme Court eventually adopted Holmes's view in Girouard v. United States (1946). But there is much more, namely, the evolution of an idea, magnificently expressed, that nine decades later is hailed by the Supreme Court as “the proudest boast of our free speech jurisprudence.”