Hob: Nice mustache.
Nob: Oh, thanks, my wife is still unsure about it.
Hob: No, I mean on the cover of that book you’re reading. If I’m not mistaken, that’s the great Oliver Wendell Holmes Jr, blue-blooded Boston Brahmin, thrice-wounded Civil War Veteran, and Supreme Court Justice.
Nob: You have a good eye.
Hob: You know, I’ve never understood how a man who believed that a democratically-elected government could, legally speaking, do more or less whatever it wanted, a man who “disdained all constitutional rights,” came to change his mind, and became the poster-child for First Amendment restrictions on government action.
Nob: Well you should read this book—The Great Dissent: How Oliver Wendell Holmes Changed his Mind and Changed the History of Free Speech in America, by Thomas Healy.
Hob: I tried, but got bogged down in the long descriptions of Holmes’ daily routine, of his vacation home on Boston’s North Shore, the secret affair with a married woman in Ireland, etc. Who cares? The book is supposed to be about ideas, and how some ideas shifted this man’s beliefs. I wish Healy had skipped all the other stuff.
Nob: Well it all started with a chance encounter on a train—
Hob: —See now you’re doing it too—
Nob: —with Judge Learned Hand.
Hob: Is that pronounced “Learnéd Hand”?
Nob: Yes.
Hob: How on earth did he come by that name? If anyone ever confirmed nominative determinism, he does.
Nob: Doesn’t matter, let’s get to the ideas. Hand (who, I do have to add, studied philosophy in college) had recently ruled against the government in a case involving the 1917 Espionage Act.
Hob: The World War I law that criminalized willfully obstructing the draft, and causing insubordination in the military?
Nob: Yes. The Postmaster General decided that the anti-war cartoons and poems in the leftist journal Masses violated that law, and refused to deliver it through the mail. The editor sued, arguing that the stuff in his journal was protected by the First Amendment.
Hob: Which it obviously was. I mean look at it—I read the internet, that’s pretty tame stuff.
Nob: Not then it wasn’t. But—
Hob: Wait, not tame, or not protected by the First Amendment?
Nob: Neither. But Hand, an anxious and risk-averse man, nevertheless had a kernel of courage in him, and ruled against the government, claiming that, if the government’s claims were correct, they would “contradict the normal assumption of democratic government that the suppression of hostile criticism does not turn upon the justice of its substance or the decency and propriety of its temper.”
Hob: Sounds sensible.
Nob: No one thought so. His decision was immediately overturned on appeal. It remained legal for the Post Office to refuse to deliver writings critical of the war.
Hob: So what happened on the train?
Nob: Hand and Holmes were, coincidentally, on the same train, and ran into each other. Hand, instead of chatting about the weather, decides to make his case to Holmes. Holmes was dismissive, but Hand persisted, following up with a letter. Here’s an edited version:
Opinions are at best provisional hypotheses, incompletely tested. The more they are tested, after the tests are well scrutinized, the more assurance we may assume, but they are never absolutes. So we must be tolerant of opposite opinions or varying opinions by the very fact of our incredulity of our own. Tolerance is the twin of Incredulity, but there is no inconsistency in cutting off the heads of as many as you please; that is a natural right. Only, and here we may differ, I do say that you may not cut off heads because the victims insist upon saying things which look against Provisional Hypothesis Number Twenty-Six, the verification of which to date may be found in its proper place in the card catalogue.
Hob: I take it the “cut off the heads” stuff is a metaphor for any kind of government punishment.
Nob: Yeah, it was a different time.
Hob: The conclusion sounds right, the government shouldn’t punish people just for expressing thoughts or ideas. The reasoning I’m not so sure about. “We must tolerate opposite opinions because ours might be wrong”—but aren’t some of the things we believe, no longer provisional? Haven’t some things been tested thoroughly enough that we know them to be true?
Nob: Maybe but that wasn’t Holmes’ objection.
Hob: Wait, Holmes wasn’t convinced?
Nob: Holmes was in his seventies, on the Supreme Court, thought he was the greatest jurist of his age. One letter wasn’t going to change his mind.
Hob: Then what was his objection?
Nob: “Free speech stands no differently than freedom from vaccination.” Acting on a “provisional hypothesis that might be wrong” is the “condition of every act.”
Hob: Come again?
Nob: I think he’s saying that, just as it’s okay for the state to force people to get vaccinated (he may have had in mind requirements that soldiers get vaccinated) when the best evidence available suggests it is relatively safe and will save many lives, so it’s okay to punish the expression of certain ideas when that also, as far as we can tell, is for the best. It’s no objection to vaccination that we might be wrong; and it’s no objection to censorship either. That’s because it is never an objection to an act that the beliefs we take to justify the act might be wrong—and that’s never an objection because it’s our inevitable situation.
Hob: So Holmes embraced Hand’s premise, that no matter what we believe and no matter how good our evidence, we might be wrong, but disagreed with Hand about what conclusion follows?
Nob: Right.
Hob: Huh.
Hob: You were going to tell me what changed Holmes’ mind. So far you’ve just told me how he didn’t.
Nob: Let’s fast forward to the Debs decision.
Hob: You mean Eugene Debs, four-time Presidential Candidate for the Socialist Party of America.
Nob: Socialists opposed the war, saying it served capitalists interests, while the workers were the ones drafted against their will to fight and die. In the summer of 1918 Debs gives a speech touching on these themes. He’s arrested, tried, and convicted of attempting to incite disloyalty in the military and to obstruct the draft.
Hob: The case, I assume, was appealed all the way to the Supreme Court, and Holmes wrote the decision?
Nob: Yes, in 1919 the court upheld the conviction.
Hob: It sounds like, as Holmes understood the Espionage Act and the Constitution, any expression of opposition to the war could be construed as, and therefore legitimately punished as, an attempt to obstruct the government’s war efforts, since after all the speech or writing might inspire someone somewhere to dodge the draft, or desert their post, or whatever. So in practice the law allowed the government to punish any criticism of itself.
Nob: Yeah.
Hob: And still Holmes’ hasn’t changed mind.
Nob: No, but lots of people were really mad at him.
Hob: I thought he didn’t care what people thought?
Nob: Well, now even “elites” whose respect he wanted were mad. Even the New Republic was publishing pieces attacking his decision.
Hob: What’s the New Republic?
Nob: Doesn’t matter. Many of his friends were also lobbying him in a more friendly way to change his mind. And one of them, Harold Laski, a Harvard Professor, was in trouble—for something he said. The Boston police were trying to unionize, the Police Commissioner categorically opposed it, and Laski, an avowed socialist, defended their rights in comments to the Harvard Crimson. Uproar ensued; faculty, donors, and alumni called for him to be fired.
Hob: Was he?
Nob: The Harvard President refused, and said (as Healy puts it) that “The real danger to America was not Laski or Bolshevism but the erosion of free thought and inquiry. If Harvard represented only one point of view, ‘it would be stagnant.’”
Hob: Well that’s quite an interesting fact from Harvard’s history.
Nob: Really? Why?
Hob: Nevermind. So Laski was fine.
Nob: No, not yet anyway; a Wall Street millionaire started a campaign to go over the President’s head and have the University’s Board of Overseers fire Laski.
Hob: WHAT?
Nob: So all this is going on while the Supreme Court is working on the Abrams case.
Hob: Tell me about it.
Nob: These First Amendment cases tend to get weirder and weirder, the more you know about them. Abrams concerned four Russian immigrant anarcho-socialists who opposed acts the Wilson administration was undertaking as part of the war effort, that they thought (correctly) were covert attempts to undermine newly-communist Russia.
Hob: Okay, so what did they do? Blow up some buildings?
Nob: They distributed some leaflets.
Hob: Leaflets. So, like, the 1918 equivalent of a tweet.
Nob: If you’ve got one of those accounts with only a couple dozen followers. Here’s a bit of what they said:
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.
That sort of stuff. They called for a strike. One of the leaflets ended
P.S. It is absurd to call us pro-German. We hate and despise German militarism more than do your hypocritical tyrants. We have more reasons for denouncing German militarism than has the coward of the White House.
The government prosecuted them under the Sedition Act, which made it a crime to say anything disloyal about the US form of government, or anything intended to encourage resistance to the war.
Hob: But they obviously didn’t do any of those things!
Nob: They were convicted anyway.
Hob: What’s an anarcho-socialist?
Nob: They’d probably seem quite familiar to you:
[Clayton, the prosecutor,] asked [one of the defendants] whether, as an anarchist, she believed in the laws prohibiting murder. When she responded that in a just society there would be no crime and thus no need for laws, Clayton asked what she thought about the laws regarding morality and marriage. Wouldn’t such laws still be necessary even in a just society? Not at all, she replied. People should marry for love, not for moral or economic reasons.
Nob: So, back to Abrams. Now Holmes had changed his mind, and he writes his famous dissent:
Congress certainly cannot forbid all effort to change the mind of the country...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.
And regarding the case at hand,
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.
It’s all quite dramatic, quite moving. Some of the judges in the majority visit Holmes at home, and ask him to abandon his dissent, for the sake of national security. Healy writes,
The unrest that had erupted that summer had continued into the fall. The Boston police force had been disbanded, the steelworkers had gone on strike...The president had suffered a stroke and lay incapacitated at the White House, his wife reportedly running the show.
The future of the country was at stake! But, steadfast, Holmes declined. "To remain silent now," writes Healy, "would be an act of cowardice, of betrayal.”
Hob: Yeah so Holmes goes from being okay with the government punishing speech that might possibly have bad effects eventually (especially on the government’s own war efforts), to declaring that the government may only punish speech in cases of “present danger of immediate evil.” But why did he change his mind?
Nob: He thought more deeply about the topic, after being criticized so much for his earlier view. His friend was in trouble for expressing his political views in the Harvard Crimson, putting a face other than (to Holmes) unsympathetic socialists on the issue. He came around to the view on the matter that various people (Laski included) had been urging on him.
Hob: No, I don’t want to know what caused him to change his mind. I want to know what rational arguments persuaded him that he was wrong.
Nob: Well he’d been reading On Liberty by John Stuart Mill.
Hob: And he said “this guy’s got it right”?
Nob: Healy gives us no evidence of him ever saying that.
Hob: What does Healy say about the reasons Holmes had for his new-found support for freedom of expression?
Nob: Healy mainly just quotes the dissent itself—the argument Holmes advances in that dissent:
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.
Hob: But what argument did Holmes give, or anyway accept in his heart, that this is the “best test of truth”? Isn’t that thesis a bit questionable? If someone said “the best test of value is the power of the good or service to get itself accepted in the competition of the market,” many would dispute it, and anyway the government intervenes all over the place in markets for goods and services, often (many think) for the better. Indeed the sale of certain things is outright banned. Why couldn’t that also be ok in the “marketplace of ideas”? Does Holmes mean to argue that, since libertarianism is in general the correct political philosophy, it is also correct when it comes to speech? Anyway, what does all of this have to do with the correct interpretation of the First Amendment, the writers and ratifiers of which never read John Stuart Mill?
Nob: Regarding Holmes’ thinking on these matters, from this book, this is all we get.
Hob: ...
Hob: Well that’s a bit of a bummer.
Nob: When you’re on the Supreme Court, you don’t have to explain yourself.
Hob: Earlier you quoted Learned Hand, and thinking back, he had a different argument: in a democracy it cannot be illegal to criticize the government, no matter what the “justice of [the criticism’s] substance or the decency and propriety of its temper.” In a government by the people, the people must be allowed to express their views about what the government does, or may do, even if, especially if, they oppose those actions. And even if the views they express are wrong, and known to be so. That’s an argument, not about a “test of truth,” but about democratic legitimacy.
Nob: Yes, perhaps if one is thinking about freedom of expression, one should not limit one’s diet to Holmes’ decisions.
See also: On Defending My Enemy; Whittington on free speech; Doyle on free speech.
> Hob: What’s the New Republic?
Ha