Professor Thomas Healy writes about freedom of speech, the methods of judicial decision-making, and the role of courts in...
Ken White is a First Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los...
Everyone loves a good redemption story. Maybe that’s because it helps us believe it’s never too late to change. But how does the same Justice who decided Schenck v. United States, a low point for First Amendment jurisprudence, become the ultimate source of famous First Amendment concepts and rhetoric?
In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White explores Justice Oliver Wendell Holmes’s transformation into the First Amendment hero we know him as today. To do this, Ken discusses the Sedition Act of 1918, Holmes’s dissension in United States v. Abrams, and the discourse with his friends and colleagues that ultimately swayed his opinion on free speech. He also talks to Professor Thomas Healy, First Amendment and constitutional law professor at Seton Hall and author of “The Great Dissent: How Oliver Wendell Holmes Changed His Mind And Changed The History Of Free Speech In America.”
Make No Law: The First Amendment Podcast
Ken White: Everyone loves a good redemption story. Maybe your favorite is Saul and the road to Damascus, maybe it is Ebenezer Scrooge, going from Bah Humbug to keeping Christmas better than anyone.
Ebenezer Scrooge: Merry Christmas to one and all.
Ken White: Or maybe it’s Darth Vader, throwing the Emperor down a conveniently-placed reactor shot.
Ken White: The site TV Tropes which tirelessly documents themes in popular culture calls this the Heel–Face Turn, the moment when the bad guy turns good. We like it, maybe because it makes us think that we are all redeemable, whatever wrong we might have done so far, but sometimes it can be a stretch.
Last episode we talked about Justice Oliver Wendell Holmes, Jr. and how he coined the infamously vapid phrase falsely shouting fire in a theater and used it to justify prosecuting a man for criticizing conscription.
That case, Schenck v. United States, was part of a trilogy that justified broad censorship based on ambiguous and easily manipulated standards. It was the low point of First Amendment jurisprudence.
So how did that Justice Holmes become Justice Holmes, the First Amendment Hero? Justice Holmes, the source of famous First Amendment concepts and rhetoric? Justice Holmes, the voice in the wilderness for the First Amendment? It’s the damnedest thing. He listened to people.
I am Ken White and this is Make No Law: The First Amendment Podcast from Popehat.com, brought to you on the Legal Talk Network.
This is Episode 8, Fighting Faiths.
Ken White: In the summer of 1918, a hundred years ago, lives were being spent recklessly for the last few futile months on the battlefields of Europe. The Spanish flu was still killing people across the world and in a shabby basement apartment a few blocks from Central Park on the upper east side of New York City seven immigrants, Russian Jews, printed two leaflets; one in English, one in Yiddish.
The leaflets decried President Woodrow Wilson’s decision to intervene in the Russian Revolution. These were young people; the oldest 29, the youngest 22, six men and one woman. They were anarchists or socialists, depending on who you asked. Their method of distributing the leaflets was not sophisticated.
On the morning of August 23, 1918, a crowd of men and boys were standing at the corner of Houston and Crosby Streets waiting to start work at their hat factory. They looked up and saw that it was raining paper.
Hyman Rosansky was throwing heaps of the flyers at a fourth floor window, but into the air over the street. As far as history records, none of the workers below could read Yiddish, but they could read English and they read the group’s broadside against American troops being sent to Russia.
Male Speaker: The President was afraid to announce to the American people the intervention in Russia. He is too much of a coward to come out openly and say we capitalistic nations cannot afford to have a proletarian republic in Russia. Instead, he uttered beautiful phrases about Russia, which, as you see, he did not mean, and secretly, cowardly, sent troops to crush the Russian Revolution. Do you see how German militarism combined with allied capitalism to crush the Russian revolution? This is not new. The tyrants of the world fight each other until they see a common enemy, working class enlightenment, and as soon as they find a common enemy, they combine to crush it.
Ken White: The leaflets were pretty vague about what anyone should do about this situation other than resist and speak out against intervention in Russia.
Male Speaker: Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom. You who emigrated from Russia, you who are friends of Russia, will you carry on your conscience in cold blood the shame spot as a helper to choke the Workers Soviets? Will you give your consent to the inquisitionary expedition to Russia? Will you be calm spectators to the fleecing blood from the hearts of the best sons of Russia? And so on like that.
Ken White: Military police arrested Hyman Rosansky almost immediately and convinced him to turn in his six confederates. They were all arrested and charged in Federal Court in New York of violating the Sedition Act of 1918.
Now, the Espionage Act of 1917, which we talked about last episode, was bad enough, but the Sedition Act of 1918 to modern ears is completely absurd. It prohibits a wide variety of statements about the military, about government bonds, about conscription and enlistment and about war production. It’s not limited to speech urging violence or law breaking, it prohibits saying things that are, and I am quoting here, “disloyal, profane, scurrilous, or abusive about the government or the military”.
It prohibits writing any language intended to bring the United States or its government or its military or its uniform or flag into contempt, scorn, contumely, or disrepute. You don’t get a lot of contumely anymore.
What passed for justice was Swift.
The seven were arrested on August 23, 1918. They were most historical records suggest beaten. One died before trial, allegedly of the Spanish flu, but he had been interrogated by the police officer widely known as the Tiger. They were convicted on October 23, 1918, just two months later.
The trial judge was Henry Clayton, a former Senator known for the Clayton Antitrust Act. They brought him up from Alabama to preside, allegedly because of how busy the New York judges were. He was not neutral. He more or less told the jury that the defendants violated the Sedition Act. He repeatedly interrupted and took over the prosecutor’s cross-examination of the defendants and he ridiculed the defense.
Part of the defense was the idea that the defendants did not intend to hinder the war effort, but to raise awareness of its injustice. Judge Clayton compared that to a man holding a gun to somebody’s head and pulling the trigger and then saying they didn’t intend to kill. He asked the defendants why if they were so concerned with the means of production, they didn’t go out upon the land and produce something? It’s no surprise that six out of the seven defendants were convicted.
The day after they were convicted, Judge Clayton sentenced them. He once again reviled the defendants. He talked about the daughters of Tsar Nicholas, correctly believed to have been murdered by the Russian revolutionaries, and he refused to let the defendants speak at their own sentencing, as defendants have the right to do.
Judge Henry Clayton: I am not going to permit anybody to start anything today. There will be no propaganda started in this Court, the purpose of which is to give aid and comfort to soapbox orators and to such as these miserable defendants who stand convicted before the bar of justice. You don’t know anything about democracy and the only thing you understand is the hellishness of anarchy.
Ken White: Hyman Rosansky, who had turned on his fellow anarchists, got three years in federal prison. Three of the others, including a man named Jacob Abrams, were sentenced to 20 years in federal prison. Jacob Abrams was the one who purchased and installed the printing press that made the leaflets.
Abrams appealed eventually to the Supreme Court. He did argue that the leaflets were protected by the First Amendment, but as the Supreme Court put it, he only argued that somewhat faintly. The Court disposed of it in two sentences saying that under United States v. Schenck, as written by Justice Holmes, the speech was not protected. Remember that Holmes had said the Charles Schenck could be convicted under the Espionage Act just for urging conscripts to question the draft. And that was in a pamphlet that was far more patriotic and flag-waving than the one that Abrams published.
The main issue Abrams and his co-defendants argued was that there was no proof that they had the sort of bad intent required to break the law. They said that they weren’t betraying America; they were defending their people in Russia. The outcome was no surprise. Justice Clarke wrote for the court.
Justice John H. Clarke: The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the Government of the United States, and to cease to render it assistance in the prosecution of the war.
This is not an attempt to bring about a change of administration by candid discussion, for, no matter what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create an attempt to defeat the war plans of the Government of the United States by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war.
Ken White: Justice Clarke’s opinion affirming the convictions is quite brief and simple. It doesn’t offer any durable legal principles or memorable soaring rhetoric, and it made legal scholars not unreasonably pessimistic about the role of the Supreme Court in protecting First Amendment rights.
The next year the Harvard Law Review wrote the lesson of United States v. Abrams is that Congress alone can effectively safeguard minority opinion in times of excitement. That’s dramatically different than our modern expectation that we must look to courts to protect our rights in wartime, not to Congress.
Justice Oliver Wendell Holmes’ dissent on the other hand is legendary. It contains seeds that would not sprout for half a century and concepts that form the framework for how we think and talk about free speech now.
The dissent doesn’t start out convincingly. Holmes tries to argue that what he wrote in United States v. Schenck and its companion cases doesn’t dictate the result for Jacob Abrams. It’s not very persuasive. He doesn’t apologize. He wasn’t the sort. But having acknowledged those cases, he steadily undermines them. He begins by articulating a standard that will be bandied about on the court for decades, a restriction on when the government could punish advocacy like this.
Justice Oliver Wendell Holmes, Jr.: I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times.
Ken White: So there you have strongly stated the clear and present danger test that the government can only punish speech that is intended to produce clear and imminent danger that will produce immediately the harm that the government worries about.
Next, Holmes makes it clear that the danger has to be likely, not merely hypothetical. He challenges not what Jacob Abrams helped write, but the lack of proof that it moved anyone or could have.
Justice Oliver Wendell Holmes, Jr.: It is only the present danger of immediate evil that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.
Ken White: Holmes in other words confronted the implication of what he wrote in United States v. Schenck, that thanks to his decision, any silly person could wind up in federal prison for railing against the government, however unlikely they were to do any harm at all. Holmes finishes with one of the most famous passages in First Amendment history.
Justice Oliver Wendell Holmes, Jr.: Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all of your heart, you naturally express your wishes in law and sweep away all opposition.
To allow opposition by speech seems to indicate that you think speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises.
But when men have realized that time has 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. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge.
While that experiment is part of our system, I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.
Ken White: The philosophical building blocks of our modern approach to free speech are here, the concept of a marketplace of ideas. The idea that speech should counter speech, the unchecked right to have and express an opinion and the limitation of censorship to situations where it is necessary to prevent specific pressing immediate needs, those all become First Amendment doctrine in one form or another.
But how did Justice Oliver Wendell Holmes get from his opinion in Schenck in March 1919, to his dissent in Abrams, just eight months later? I ask Professor Thomas Healy, who teaches First Amendment and Constitutional Law at Seton Hall. He wrote a fascinating book called ‘The Great Dissent: How Oliver Wendell Holmes Changed His Mind – and Changed the History of Free Speech in America’. It’s about Holmes’ redemption story. Professor Healy believes that Holmes’ dissent in Abrams is perhaps the most important dissent in Supreme Court history.
Thomas Healy: Well, I guess a couple of reasons. One, I think that this dissent eventually did usher in our modern understanding of free speech with its invocation of the marketplace of ideas and its articulation of the clear and present danger test, which in a different form is essentially the law now.
And I think the First Amendment is widely regarded in our society as our preeminent constitutional right. So we are talking about the dissenting opinion that ultimately gave birth to our understanding of what is our most important constitutional right.
It also makes a really important cultural contribution as well I think. Just the notion of the marketplace of ideas and clear and present danger and the example of a man falsely shouting fire in a crowded theater, these are ways of thinking about and understanding free speech that have not only affected court cases, but that affect the way ordinary people think about free speech.
So I think it’s sort of a combination of the impact that Holmes had on the law and the impact that his dissent had on our cultural understanding of free speech and even our view of ourselves as a country.
Ken White: Professor Healy researched how Holmes got there. How he changed his mind from Schenck to Abrams. What he found was a robust record of letters between Holmes and some of his legal contemporaries, colleagues and friends. Those included Judge Learned Hand and Harvard Law Professor Harold Laski.
Outside the court Holmes lived an incredibly rich intellectual life debating ideas about the Constitution. It was a life that took place in law review articles and journals and letters and even parties.
Thomas Healy: I think you really get a sense that Holmes is really sort of just being hammered on all sides by these young friends of his. He can barely catch his breath before they are writing an article in The New Republic or the Harvard Law Review or his young friend Harold Laski is arranging a tea with one of his academic critics or sending him numerous books on political liberalism in England.
So I think when you really just kind of put it together in kind of chronological order, at least I was really struck by how intense and sustained this lobbying effort directed toward Holmes really was.
Ken White: That effort to convince Holmes the value of speech and tolerance of dissent began even before he heard the Schenck case.
Thomas Healy: I begin the book in the summer of 1918, so about eight or nine months before Schenck and Frohwerk and Debs are decided, because that’s when Holmes meets Learned Hand on a train from New York to Boston and the two of them begin a debate on the issue of tolerance that they continue by letter a few days later.
And that seemed to me to kind of mark the beginning of this lobbying effort, because after they exchanged letters, Holmes then shows Hand’s letter to his young friend Harold Laski. And then Laski begins debating Holmes on these issues and then Laski is the one who is responsible for Zechariah Chafee, the Harvard Law Professor, writing an article that fall in The New Republic, which then later turns into an article in the Harvard Law Review the next summer criticizing the Debs opinion. So it feels to me like the meeting between Hand and Holmes and Holmes then sharing Hand’s letter with Laski is what kicks everything off.
And of course, the campaign involves not just Hand and Laski and Chafee, it involves the editors at The New Republic magazine, Herbert Croly and Walter Lippmann. It involves Felix Frankfurter, who is a young professor at Harvard Law School at the time and a close friend of Holmes, and it involves Brandeis, to some extent, who ultimately joins Holmes’ dissent in Abrams and in some of the cases even before Schenck is sort of encouraging Holmes to think more fully about the issue of free speech.
Ken White: The influence of this group is perhaps clearest in the Abrams dissent, when Holmes talks about skepticism and intellectual humility.
Thomas Healy: The idea that skepticism of truth is what should lead us to tolerance and to a policy of free speech and that was really what Judge Hand had urged on Holmes during the summer of 1918 when they met on the train and then when they exchanged letters afterward.
Hand had argued that tolerance was the twin of incredulity; incredulity meaning skepticism or disbelief. What he meant by that is that if we are not certain of the truth, then we should not suppress other people’s ideas, because it’s possible that they have the truth and we don’t, and if we suppress their ideas we may lose the benefit of their wisdom.
This was a very pragmatic appeal to Holmes. Hand wasn’t making an argument based on inalienable rights or natural law or anything like that, because I think he knew that Holmes would not be receptive to those kinds of arguments. Instead, it was a very practical argument, which Holmes was receptive to.
Holmes was equally skeptical of our ability to know the truth, and I think when Hand makes the argument that that skepticism should lead us to a policy of forbearance, we see Holmes then in his Abrams opinion reflecting that. He says, after his opening line about how persecution for the expression of opinion seems to me perfectly logical, he then changes gears and says, but, and I think this is coming from Hand, he says but when men have realized that time has upset many fighting faiths; in other words, when they realize they don’t always have the truth, 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.
Ken White: It’s appropriate somehow that speaking freely with his friends led to Justice Holmes changing his views on the value of free speech. From our world of Twitter and texts and TV, the quality of this debate among legal thinkers is intimidating, but admirable. It’s a reason to care passionately about ideas and talk about them.
These arguments, these beliefs led inexorably to all rights as we enjoy them now.
Talking about ideas makes a difference.
In this series of podcasts, I will be telling more stories behind important First Amendment decisions. If there is a case you want to hear about or a First Amendment question you would like answered on the podcast, drop me a line at [email protected].
Thanks for listening. You can find documents and cases mentioned on this podcast at popehat.com or legaltalknetwork.com.
If you liked what you heard today, please remember to rate us in Apple Podcasts or follow us on Twitter or Facebook.
Lastly, I would like to thank our participants, voice actors, producers and audio engineers for their participation. My guest Professor Thomas Healy, our voice actors Trent Carlyle, reading the pamphlets, Jim Calloway as Judge Henry Clayton, Gyi Tsakalakis as Supreme Court Justice John Clarke, and returning as Supreme Court Justice Oliver Wendell Holmes, John Talifer, Producer Kate Nutting, Executive Producer Laurence Colletti, and last but not least, music, sound design, editing, and mixing by audio engineer Adam Lockwood and assisted by Kelly Kramarik.
See you next time for Episode 9, The F-Bomb.
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