Although he enjoys reputation as a great civil libertarian, primarily because of his position on free speech, Oliver Wendell Holmes’s overall posture in this area is somewhat mixed. The son of a prominent Boston family, Holmes went to Harvard College, served with distinction during the Civil War, and then attended Harvard Law School. He disliked legal practice, however, and managed to earn a living as an editor, writing essays on history and jurisprudence for the American Law Review and editing a new edition of James Kent’s Commentaries on American Law. He made his name, however, with The Common Law (1881), which has remained one of the most influential treatises in Anglo-American law ever since. After a brief stint teaching at Harvard Law School, he accepted an appointment to the Supreme Judicial Court of Massachusetts, and by 1901 sat as chief justice on that bench. The following year Theodore Roosevelt named him to the U.S. Supreme Court, where he served for thirty years.
During his two decades on the Massachusetts high court, Holmes earned a reputation as a mild progressive, primarily because he believed in judicial deference to legislative policymaking and because he did not share the antiunion sentiments of his colleagues. In one of the few civil liberties cases decided during his tenure, McAuliffe v. New Bedford (1892), Holmes upheld the right of a township to discharge a police officer for undesirable political activity. ‘‘The petitioner may have a constitutional right to talk politics,’’ Holmes wrote, ‘‘but he has no right to be a policeman.’’ In Commonwealth v. Davis (1895), the Court upheld a prohibition against unlicensed speech making on the Boston Common. For Holmes, ‘‘for the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.’’
Once on the Supreme Court, Holmes gained some renown among progressives for insisting that in matters of economic policy, judges ought to defer to the legislature. In one of his most famous opinions, a dissent in Lochner v. New York (1905), he noted that the case had been decided by his colleagues ‘‘upon an economic theory which a large part of the country does not entertain.. . . The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.’’ Throughout his career Holmes upheld the right of legislatures and not courts to determine policy, but he did so from the viewpoint of a skeptic. He did not care much about economic policy, believing that in the long run it made little difference. Every sensible man, he told a friend, ‘‘knows that the Sherman law is damned nonsense, but if my fellow citizens want to go to hell, I am here to help them—it’s my job.’’
Holmes’s early opinions in civil liberties were mixed, and he was not part of the small group centered around Justice John Marshall Harlan that supported minority rights. In Bailey v. Alabama (1911), the Court invalidated a state peonage law that had reduced some African Americans practically to a state of slavery. Holmes saw no problem with the state providing criminal penalties for a breach of a labor contract, implying that black workers were shiftless and often disappeared after accepting an advance against wages. He reversed his position somewhat in United States v. Reynolds (1914), invalidating a comparable practice, the criminal surety arrangement where people could work off fines for minor offenses. Because this practice applied to minors and people with little intelligence, it went too far, but he did not join the Court’s opinion relying on the Thirteenth Amendment. Holmes also displayed little sympathy for the rights of aliens, insisting that they were in the United States at the sufferance of Congress, which had plenary power over immigration, and therefore Congress could impose any limits it wanted on aliens.
Holmes wrote his first speech opinion in Patterson v. Colorado (1907), Holmes took a traditional approach, relying as did all American courts at that time on the writings of Sir William Blackstone, who had argued in his Commentaries that the right of free speech precluded prior restraint (that is, the government could not stop a person from speaking or publishing ideas), but the law could punish speakers and writers if their expressions tended to harm the public welfare. In Patterson, Holmes followed Blackstone’s analysis. Thomas Patterson, a Democratic U.S. senator from Colorado and a newspaper publisher, had written a series of scathing editorials ridiculing the state supreme court for its role in overturning a referendum giving Denver home rule. The Republican state attorney general brought criminal contempt charges against Patterson on behalf of the court, which in turn fined him and his company $1,000, without allowing him to prove truth as a defense.
Patterson appealed, but Holmes, speaking for the Court, rejected all of his arguments. The First Amendment, Holmes wrote, ‘‘prevents all previous restraints upon publication,’’ but allows ‘‘the subsequent punishment of such as may be deemed contrary to the public welfare.’’ Holmes also dismissed the notion of truth as a defense, an idea that had supposedly been part of American jurisprudence ever since the Zenger case in colonial times. ‘‘The preliminary freedom extends to the false as to the true; the subsequent punishment may extend as well to the true as to the false.’’ In subsequent speech cases before and immediately after World War I, the Court adhered to the Blackstonian view as expounded by Holmes.
In the first postwar case, Schenck v. United States (1919), the secretary of the Philadelphia Socialist Party had been indicted for urging resistance to the draft. He had sent out circulars condemning conscription as despotic and unconstitutional and calling on draftees to assert their rights and refuse induction. Under the terms of the Espionage Act, Schenck had urged unlawful behavior; but did the Constitution’s guarantee of free speech protect him? Holmes attempted to develop a standard based on the common law rule of proximate causation, and he took a fairly traditional view of speech as a limited right. One could not, he pointed out, falsely shout ‘‘Fire!’’ in a theater. In a famous passage, Holmes attempted to define the limits of speech:
The question in every case is whether the words used are used in such circumstances and are of such a nature to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and no Court could regard them as protected by any constitutional right.
The ‘‘clear and present danger’’ test became the starting point for all subsequent free speech cases, and within a week, the Court sustained two other convictions under this rule. In Frohwerk v. United States (1919), a German-language newspaper had run articles attacking the draft and challenging the constitutionality of the war, whereas in Debs v. United States (1919), Holmes accepted a jury finding that in a militant antiwar speech, Debs had intended interference with mobilization.
The three decisions, as well as the clear and present danger test, upset defenders of free speech, especially because they had come from a man they believed to be an ardent libertarian. Legal scholars such as Zechariah Chafee, Jr., Ernst Freund, and others attacked Holmes for his insensitivity to the larger implications of free speech. In an influential article (later expanded into a book), ‘‘Free Speech in the United States,’’ Chafee insisted that the framers of the First Amendment had more in mind than simple censorship. They intended to do away with the common law of sedition and make it impossible to prosecute criticism of the government in the absence of any incitement to law breaking. In none of these three cases could one argue that the defendants had been attempting to incite active law breaking.
Holmes, stung by this criticism, agreed to meet with Chafee. The Harvard professor convinced Holmes that free speech served broad social purposes and that the national interest would suffer more from restrictions on speech than from some alleged and vague dangers posed by unpopular thought. Moreover, through a clever, if somewhat inaccurate reading of history, Chafee convinced Holmes that his phrase ‘‘clear and present danger’’ had not only historical roots, but actually was very speech protective. Chafee’s missionary work bore fruit at the next term, when Holmes, along with Louis D. Brandeis, began reformulating the clear and present danger test.
In Abrams v. United States (1919), the defendants had distributed pamphlets in Yiddish and English criticizing the Wilson administration for sending troops to Russia in the summer of 1918. The government had no way to prove that such leaflets actually hindered the war with Germany, but a lower court judge found that they might have caused revolts and strikes and thereby diminished the number of troops available to fight the Germans. Seven members of the Court, led by Justice John H. Clarke, agreed that the government had provided sufficient proof to support this charge and that the conviction could be sustained under the Schenck test of clear and present danger.
Both Holmes and Brandeis disagreed, and in an eloquent dissent, Holmes limned one of the great defenses of free speech. The ‘‘silly leaflets’’ hardly posed a danger to society, and the fact that the ideas expressed were unpopular or even considered dangerous made no difference:
When men have realized that time has come to 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.
Holmes’s dissent in the Abrams case is often seen as the beginning of the Court’s concern with free speech as a key right in democratic society, and it put forward the notion of democracy resting on a free marketplace of ideas. Some ideas might be unpopular, some might be unsettling, and some might be false. But in a democracy one had to give all ideas an equal chance to be heard, in the belief that the false, the ignoble, and the useless would be crowded out by the right ideas, the ones that would facilitate progress in a democratic manner. Only if society took the guaranty of the First Amendment seriously could that happen.
Holmes’s theory, often dubbed as ‘‘the marketplace of ideas,’’ is a negative view, and reflects the jurist’s basic skepticism. One did not know whether any one idea was true or false, good or bad, so let the people fight it out by words, and the best idea would win. Not until Brandeis’s opinion in Whitney v. California (1927) did someone come up with a positive view of First Amendment protection, namely, that free speech was an integral part of a citizen’s duty in a democratic society.
Holmes also receives high marks in the area of criminal justice. In Silverthorne Lumber Company v. United States (1920), two men had been arrested after indictment by a grand jury, and the Justice Department, without a warrant, then ransacked their office, removing books, papers, and other documents. Holmes, writing for the Court, branded the government’s action an ‘‘outrage’’ and ‘‘without any shadow of authority,’’ and blocked any use of the illegally seized documents by the prosecution. Holmes insistence that the materials ‘‘shall not be used at all’’ expanded the exclusionary rule that had first been enunciated in Weeks v. United States (1914).
The government’s use of new technology, listening in on private telephone conversation through a tap to catch criminals, received the approval of a bare majority of the Court in Olmstead v. United States (1928). Holmes joined in the more famous dissent by Brandeis, in which Brandeis laid out the idea of a constitutionally protected right to privacy, but added his own short dissent to state how the practice disgusted him, calling wire tapping ‘‘a dirty business.’’
Holmes also had the satisfaction of seeing one of his dissents adopted by the Court during his tenure. At the time the federal courts exercised almost no supervision over the practices of state courts in criminal trials. The Fourth, Fifth, and Sixth Amendments were still held not to apply to the states. In Frank v. Mangum (1915), the Court, over a vigorous dissent by Holmes, refused to review the case of Leo Frank of Georgia, where a lynch mob stood outside the courtroom threatening the jury. In Moore v. Dempsey (1923), however, Holmes speaking for the Court overruled the earlier case, and held that federal courts should hear appeals of cases in which due process of law, which did apply to the states through the Fourteenth Amendment, had been violated by mob violence or intimidation.
But the Holmes opinion that has darkened his reputation is his brief and almost brutal approval of forced sterilization in Buck v. Bell (1927). The eugenics movement had gained enormous popularity in the country, and a number of states had passed laws requiring the sterilization of mental incompetents in an effort to ‘‘improve’’ the race. The test case arose from Virginia, and involved eighteen-year-old Carrie Buck, who had become pregnant after a rape. The family she lived with had committed her to a state institution, and its director decided to use Buck to test the constitutionality of the law. At the trial, the state presented witnesses to prove Carrie’s feeblemindedness, and one person described the family as part of the ‘‘shiftless, ignorant and worthless class of antisocial whites.’’ Neither Carrie, her mother Emma, nor her daughter Vivien were, according to the charges ‘‘normal.’’
Speaking for an eight-to-one Court (only Justice Pierce Butler dissented), Holmes made short shrift of the defense argument. He dismissed the equal protection claim as ‘‘the usual last resort of constitutional arguments,’’ and cited only one case in support of upholding the sterilization law, Jacobson v. Massachusetts (1905), which endorsed compulsory vaccination of school children. He wrote:
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange indeed if it could not call upon those who already sap the strength of the State for these lesser sacrifices.. . . Three generations of imbeciles are enough.
Although Holmes became the darling of eugenics supporters for this opinion, the movement faded with the rise of Nazism in the 1930s, and the case has had a bad odor about it ever since. Critics of Holmes constantly point to this opinion as a ‘‘true’’ indicator of his so-called liberalism, and Catholic scholars in particular have attacked him for falling into the error of abandoning natural law for positivism. But the worst aspect of the case is that years later it turned out that there never had been three generations of imbeciles. The Buck women had been shy and abused, but had normal intelligence.
Holmes continues to be one of the most written about members of the Court, as much if not more for his colorful life and elegant writing style than for his jurisprudence. Although we remember such phrases as ‘‘clear and present danger,’’ ‘‘fire in a crowded theater,’’ and ‘‘a dirty business,’’ these epigrams did little to guide lower courts in explicating issues arising from the Bill of Rights. Holmes caught the popular imagination, but is rarely cited today. Brandeis actually worked out usable theories of free speech and privacy, and these theories helped shaped the jurisprudence of the twentieth century.
MELVIN I. UROFSKY
References and Further Reading
Cases and Statutes Cited