The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., and the Story behind Abrams v. United States THOMAS HEALY More than any other single person, Oliver Wendell Holmes, Jr., is responsible for the position that freedom of speech occupies in American society today. His landmark First Amendment opinions have not only shaped free speech doctrine and theory, they have worked their way into our collective consciousness, becoming part of our language, our view ofthe world, and our identity as a nation. Yet, strangely, Holmes was not always a staunch defender of free speech. Prior to writing his 1919 dissent in Abrams v. United States, he had done as much as any judge to render the First Amendment toothless. In one of the first Supreme Court cases to address the topic, he had embraced the cramped Blackstonian view that freedom of speech prohibits only prior restraints but places no limits on the government’s power to punish speakers after the fact.1 In another case, he had upheld the conviction of a small-time anarchist for inciting nude sunbathing.2 And just eight months before his famous dissent in Abrams, Holmes had written three opinions for the Court upholding convic tions of socialists and pacifists who had criticized American involvement in World War I.3 It wasn’t that Holmes had a particular dislike offree speech. What irked him was the notion of individual rights in general, the idea that there are limits on what a democratic majority can do. “Every society rests on the death of men,” he liked to say.4 If a nation needs soldiers, it seizes young men and marches them off to war at the point of a bayonet.5 If an epidemic breaks out, it forces the public to get vaccinated. The same is true, Holmes thought, even when there is no emergency. If the majority wants to limit the workday of bakers to ten hours, it should be permitted to do so, regardless of whether that decision is misguided or conflicts with 36 JOURNAL OF SUPREME COURT HISTORY The Espionage Act of 1917 and Sedition Act of 1918 outlawed the use of “disloyal, profane, scurrilous, or abusive language” about the government during World War I. In 1922, children of fathers who were political dissidents pleaded for their release. some ideal of freedom.6 And he, as a judge, had no business standing in the way. “If my fellow citizens want to go to Hell 1 will help them,” was another favorite saying. “It’s my job.”7 In short, Holmes was in many ways the Justice least likely to stick his neck out for the right of free speech—and for the Court’s role in enforcing that right. So why did he do it? Why did a man who sneered at liberal sentimentality his whole life write one of the canonical statements of American liberal ism, an opinion that has been compared to the speeches of Lincoln and the essays of Milton?8 That question is one of the great legal and intellectual mysteries of the twenti eth century. And the answer is a fascinating story of chance encounters, intellectual ex ploration, and personal relationships. But in order to appreciate how remarkable that story is, we first need to understand just how radically Holmes’ position on free speech shifted from his early years as a state court judge to his later years on the Supreme Court.9 Free Speech Skeptic The evidence of Holmes’ insensitivity to free speech begins during his tenure on the Massachusetts Supreme Judicial Court from 1882 to 1902. Although the First Amendment did not apply to the states at the time, Holmes decided a handful of cases raising issues of free speech. For the most part, these cases fell into two categories. The first consisted oflibel suits in which the defendants asserted a common law privilege in an effort to avoid liability. In Cow/ey v. Pulsifer, a newspaper argued that its statements about the plaintiff were protected because they had been taken from a petition filed in court.10 And in Burt v. Advertiser Newspaper Co., a newspaper claimed it could not be held liable for false...