Oliver Wendell Holmes Jr. and the “Marketplace of Ideas”: Experience Proves To Be the “Life of the Law”
Perhaps no Supreme Court justice is more associated with constitutional free speech doctrine than Oliver Wendell Holmes Jr. Many know the phrase “clear and present danger” or the metaphor about “falsely shouting fire in a theatre,” both of which come from his 1919 Opinion of the Court in Schenck v. United States.1As the first instance in which the Supreme Court authoritatively interpreted the First Amendment’s free speech guarantee to determine the constitutionality of a Congressional statute, authoring this opinion alone would constitute a significant contribution to speech jurisprudence.
KeywordsFree Speech Hate Speech Fourteenth Amendment Present Danger Supreme Court Justice
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- 3.Oliver Wendell Holmes Jr., The Common Law (1881; reprint Mineola, NY: Dover Publications, 1991), 1.Google Scholar
- 4.Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (Cambridge, MA: Harvard University Press, 1960).Google Scholar
- 7.See Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (New York: W. W. Norton, 2004)Google Scholar
- 9.Gitlow v. New York, 268 U.S. 652 (1925). The due process theory does not claim that the rights protected are federal rights. It recognizes that the responsibility for securing them remains in the hands of the states, but it holds that the requirements of due process prevent the states themselves from violating them. Plenary federal authority over private action interfering with these rights is thus not conferred. The suppression of antislavery speech in the years before the Civil War was a very serious matter in many places and some commentators have suggested that as a result, key radical Republican drafters of the sweeping phrases of the Fourteenth Amendment’s first section did indeed therein intend to nationalize civil liberties protections, including the First Amendment’s free speech guarantee. Horace Flack, The Adoption of the Fourteenth Amendment (Baltimore, MD: Johns Hopkins Press, 1908)Google Scholar
- Jacobus tenBroek, The Anti-Slavery Origins of the Fourteenth Amendment (Oakland, CA: University of California Press, 1951).Google Scholar
- 15.Ibid., 52. According to Thomas Healy, the crowded theatre metaphor was first used by an attorney in the lower court proceeding in Debs v. United States, 249 U.S. 211 (1919). Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—And Changed the History of Free Speech in America (New York: Henry Holt, 2013), 97.Google Scholar
- 24.Stephen M. Feldman, “Free Speech, World War I, and Republican Democracy: The Internal and External Holmes”, First Amendment Law Review 6 (2008): 237.Google Scholar
- 26.The relationship is described at length and with extensive detail in Healy, The Great Dissent. See also Mark DeWolfe Howe, ed., Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski 1916–1935 (Cambridge, MA: Harvard University Press, 1953).Google Scholar
- 33.It was actually Brandeis who held most consistently to protection of speech in a series of separate opinions he authored in the 1920s, usually, but not always, joined by Holmes. In this effort, Brandeis cited Holmes’s “clear and present danger” test from the Schenck case, insisting that the words “clear and present danger” gave greater protection to speech than the old “bad tendency” test that said speech could be punished if it had a tendency to bring about violation of law. See Steven B. Lichtman, “The Disappearing Jurisprudence of Louis Brandeis”, Brandeis University Law Journal 3 (2013): 9–28.Google Scholar
- 35.Rabban points out that before the World War I cases there was a radical libertarian cultural view of free speech that opposed repression of speech including speech involving sexually-related expression that the Progressives tended to dismiss. David M. Rabban, Free Speech in Its Forgotten Years, 1870–1920 (New York: Cambridge University Press, 1997), 5.Google Scholar
- 40.Reportedly, on the occasion of his ninety-second birthday Holmes was visited by the recently inaugurated President Franklin D. Roosevelt. When Holmes was later asked his opinion of the new president, he is supposed to have replied “a second-class intellect, but a first-class temperament.” However, the story is deemed apocryphal by Richard A. Posner and held to actually represent Holmes’s opinion of Theodore Roosevelt, not Franklin Roosevelt. See Posner’s The Essential Holmes (Chicago, IL: University of Chicago Press, 1992), xvi.Google Scholar
- 57.For a discussion of what is described as a New Deal for speech doctrine, see Cass R. Sunstein, Democracy and the Problem of Free Speech (New York: Free Press, 1993)Google Scholar