Welcome Thomas J. Healy (Harvard Kennedy School) (Seaton Hall) and Host bmaz (Emptywheel.net)

The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America

The greatest works on history have lessons for their readers today, and we have such a volume for this Salon. It is a tale of both men and justice; of both a man and a Justice, Oliver Wendell Holmes. Today we are here to discuss The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America. It is the tale of arguably America’s greatest Supreme Court Justice and his most enduring work, the gestation of modern First Amendment law – work performed on the losing side of the case no less.

And that is the definition of a legal dissent, an objection to the majority decision and statement of the contrary case. History can prove the dissent every bit as powerful as the majority opinion though, and Holmes’ dissent in the case of Abrams v. United States was just that:

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 that 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. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion.

Holmes’ ringing dissent is not particularly long, but from it came the modern understanding of First Amendment law that influences nearly every aspect of our life today, including the ability to have this discussion on an open and free forum such as the internet.

Oliver Wendell Holmes did not arrive at his seminal turning point easily. The Abrams case was decided in 1919; for his 16 years on the Supreme Court bench prior to Abrams, Justice Holmes had been an opponent of individual rights in general and certainly to those seemingly guaranteed by the First Amendment. In fact, Holmes had been a staunch supporter of criminal convictions in free speech cases. Until Abrams, First Amendment law was, in most regards, a curiosity of little meaningful import.

In The Great Dissent, Thomas Healy takes the reader on the journey of Oliver Wendell Holmes the man from where he had been, to how he came to his momentous change of heart and penning of the Abrams dissent. It is a story of not just Justice Holmes, but the more progressive friends, politicians, fellow judges, and the changing times, that turned Holmes. Some of the greatest names in American law – Learned Hand, Harold Laski, Felix Frankfurter and Zechariah Chafee – factor in. It is an engrossing, fun and captivating story that is the complete antithesis of dry legal history.

As said at the top though, the best history always has a place in the future. This is where the power of Holmes’ Great Dissent is most significant; not only did it shape the nearly 100 years of First Amendment law that has followed, the very principles and situation that circumscribed the Abrams case is very much back in play in today’s roiling debate on the national security state and the brute force the government uses to protect it. The video to the right is Professor Healy in his own words, and is fantastic.

In the lead up to the Great Dissent, the Sedition and Espionage acts passed during World War I had been used, along with other measures, to chill and prosecute speech the governments found offensive and contrary to its own interests. As a direct result of Holmes, such arbitrary and capricious oppression of speech and press fell out of favor and contrary to law.

But use of the Espionage Act to chill the free press is back in vogue, as Pro Publica reports:

With charges filed against NSA leaker Edward Snowden this June, the administration has brought a total of seven cases under the Espionage Act, which dates from World War I and criminalizes disclosing information “relating to the national defense.” Prior to the current administration, there had been only three known cases resulting in indictments in which the Espionage Act was used to prosecute government officials for leaks.

So far, no journalist has been criminally charged, but the enterprise is under collateral assault from such prosecutions. However, Fox News correspondent James Rosen has been listed as a criminal target in a criminal subpoena affidavit in US v. Kim, and New York Times national security reporter James Risen is facing incarceration for contempt over his refusal to testify about his sources in US v. Sterling. With the clear anger of the United States government at journalist Glenn Greenwald over the Snowden leaks, and members of Congress like Peter King screaming to prosecute Greenwald and other journalists for treason and espionage, the health and protection of the First Amendment is once again in question.

As the press release for The Great Dissent states:

Beautifully written and exhaustively researched, THE GREAT DISSENT is intellectual history at its best, revealing how free debate changed the life of a man and the legal landscape of an entire nation. Whether we are talking about government surveillance or campaign spending, whistleblowers or flag-burning, the First Amendment remains at the forefront of national conversation, and we owe it all to Oliver Wendell Holmes.

It is all that and much more. Thomas Healy has written a fantastic book, and I highly recommend it for any reader, whether lay or in the legal field.

[Thomas Healy is a professor of law at Seton Hall University Law School. The youngest of six children, he was born and raised in Charlotte, N.C., and studied journalism at the University of North Carolina at Chapel Hill. He began his career as a reporter for the (Raleigh) News & Observer, where he covered crime, legal issues and education. After graduating from Columbia Law School, he clerked on the U.S. Court of Appeals for the Ninth Circuit and was Supreme Court correspondent for the Baltimore Sun. He joined the faculty of Seton Hall in 2003 and has written extensively about free speech, the Constitution, and the federal courts. He lives in New York City with his wife and two daughters. This is his first book.]


[As a courtesy to our guests, please keep comments to the book and be respectful of dissenting opinions.  Please take other conversations to a previous thread. - bev]

136 Responses to “FDL Book Salon Welcomes Thomas J. Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America”

BevW August 25th, 2013 at 1:47 pm

Thomas, Welcome to the Lake.

bmaz, Welcome back to the Lake, and thank you for Hosting today’s Book Salon.

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dakine01 August 25th, 2013 at 2:01 pm

Good afternoon and welcome to Firedoglake this afternoon Thomas. Good afternoon bmaz!

Thomas, I have not had an opportunity to read your book so forgive me if you address this in there but how do you think Justice Holmes would respond to the things today limiting free speech such as the so-called “free speech zones” as well as the arrests and attacks on protestors by police using tear gas and the “kettling?”

Concurrently, would you care to speculate on any of the dissents in recent 5 – 4 decisions that might be a guide for future SCOTUS decisions similar to how Holmes’ work has been?

bmaz August 25th, 2013 at 2:01 pm

Welcome Thomas, this should be a fun couple of hours.

And welcome to one and all others, this is a great book with a lot significant to the current day. Jump in!

Thomas J. Healy August 25th, 2013 at 2:01 pm

Hi, happy to be here.

bmaz August 25th, 2013 at 2:03 pm

Thomas, Oliver Wendell Holmes fought in the Civil War and was wounded three times, was from a prominent Boston family and his father was a prominent physician and writer in his age. How did Oliver Wendell Holmes’ personal biography in this regard form his actions as a jurist and especially in the shift he made in and around the Abrams dissent?

RevBev August 25th, 2013 at 2:03 pm

Hi, It really is a great book and a pleasure to read. I was especially interested in the description of how the Court was working during those days…..Would you say that there are any such “great minds” on the current Court?

bmaz August 25th, 2013 at 2:04 pm
In response to dakine01 @ 2

Great questions.

greenwarrior August 25th, 2013 at 2:04 pm

What inspired you to write this book? Is it related to the events of our time?

Thomas J. Healy August 25th, 2013 at 2:04 pm

It’s difficult to extrapolate from the cases Holmes decided to figure out how he would address free speech issues today. But I think he would generally argue that as long as speech doesn’t pose an imminent danger to the safety of the country, it should be allowed. As for recent dissents that might one day be a majority, that’s hard to say. Justice Ginsburg, in her interview with the NY Times today, suggested that some of her dissents in voting rights cases might one day win out. But I’m not as optimistic about that.

Elliott August 25th, 2013 at 2:05 pm

Hi, welcome to the Lake

How did you come to write about Oliver Wendell Holmes and the First Amendment?

Will you do other Amendment histories?

Thomas J. Healy August 25th, 2013 at 2:06 pm

Great question. For much of his life, Holmes lived in his father’s shadow — and he wasn’t happy about it. It wasn’t until this group of young intellectual progressives began to hold him up as a judicial icon that Holmes really felt he was getting the recognition he deserved. And of course, it was that same group that lobbied him to change his mind on free speech. So in an odd way, the insecurity Holmes felt with respect to his father may have made him more susceptible to the lobbying campaign these men carried out.

bmaz August 25th, 2013 at 2:06 pm

Also, for anybody that did not watch the You Tube video in the main post, it is only about six minutes long, and is fantastic (Thomas gives a beautiful nutshell overview).

BevW August 25th, 2013 at 2:07 pm
In response to Thomas J. Healy @ 9

As a technical note,
there is a “Reply” button in the lower right hand of each comment. Pressing the “Reply” will pre-fill the commenter name and number you are replying to and helps for everyone in following the conversation.

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Thomas J. Healy August 25th, 2013 at 2:09 pm
In response to RevBev @ 6

The Court worked so differently when Holmes was on it. Each justice had one clerk — compared to 4 today — and the clerks did very little work. The justices, on the other hand, wrote far more opinions than today, although they were much shorter. And the Court was much less careful about what it said in opinions. Holmes often snuck ideas into cases with very little vetting from his fellow justices. As for great minds on the Court today, nearly all of the current justices are incredibly smart, and it’s hard to pick one out as having the greatest mind.

Thomas J. Healy August 25th, 2013 at 2:10 pm
In response to greenwarrior @ 8

I had always been interested in the question of why Holmes changed his mind, and the chance to explore it in depth felt a bit like being a detective and solving a mystery. I also really wanted to tell a story about law and not just make arguments, which is what I do in my scholarship. I was not specifically motivated by the events of the day, although I realized right away that the book would be extremely relevant to the challenges we face now.

Mike Konczal August 25th, 2013 at 2:11 pm

Looking forward to reading your book. If your are familiar with it, I’m curious how your history of the decision compares and contrasts with the history presented in one of my favorite books, Louis Menand’s “The Metaphysical Club” (which concludes with this ruling being one of the lasting achievements of post-Civil War Pragmatism).

Thomas J. Healy August 25th, 2013 at 2:11 pm
In response to BevW @ 13

Thanks, I think I’ve figured it out now.

Teddy Partridge August 25th, 2013 at 2:14 pm

I’m reading this book and really enjoying it.

As an aside, I do find the writing style of the era incredibly difficult to follow; were our forebears allergic to punctuation? For a justice known for his opinions’ brevity, Holmes does *go on* in his personal correspondence. But I suppose one would need to love one’s own voice to write as prolifically as he did.

Anyway, I’m not trained in the law, so I need a little background here: was this perhaps the most important dissent in the Court’s history? What other dissents achieved greatness?

greenwarrior August 25th, 2013 at 2:14 pm

Until I got to them, I hadn’t realized there were photos in the book of many of the main people you wrote about. It was such a pleasure being able to see what these folks looked like after I’d gotten to know them a little from your writing. Thank you so much for including them.

Thomas J. Healy August 25th, 2013 at 2:14 pm
In response to Mike Konczal @ 16

I am very familiar with the Metaphysical Club. In fact, to go back to the earlier question about what motivated me to write this book, I was in part inspired by Menand’s book, and I view my book as a sort of sequel or spin-off. Menand mainly covers Holmes as a young man “twisting the tail of the cosmos” with William James and the other members of the Metaphysical Club. My book picks up the story later in life after most of the members of that group have died, except Holmes. The young progressives I describe in my book met at a house in D.C. called The House of Truth, which served much the same function as the Metaphysical Club had decades earlier. If I can be so bold as to say so, if you liked the Metaphysical Club, I think you’ll like this book too.

bmaz August 25th, 2013 at 2:15 pm

One of the younger progressive men described in the book as so effecting Holmes’ thinking around his shift is Judge Learned Hand, who went on to be a quite famous jurist in his own right (maybe the most famous non-Supreme Court justice). But I saw another reviewer – maybe Dershowitz? – that took issue with the effect of Learned Hand. Can you address that a bit?

Mike Konczal August 25th, 2013 at 2:17 pm

Thanks! Will definitely check it out.

bmaz August 25th, 2013 at 2:17 pm
In response to Mike Konczal @ 16

Hi Mike! Welcome!

Thomas J. Healy August 25th, 2013 at 2:17 pm

Yes, the personal correspondence can be a little old-fashioned sounding, although sometimes I think the expressions are really beautiful. I decided to quote so heavily from the letters to really immerse the reader in the time period and to give you a sense of how intimate these relationships were.

As for dissents, Holmes wrote another famous dissent in a case called Lochner v. New York, which is probably the second-most famous dissent. That was a case in which the Court struck down a maximum-hour law for bakers, and Holmes disagreed because he thought the Court shouldn’t interfere with legislature’s policy decisions.

Justice Harlan’s dissent in Plessy v. Ferguson is also very famous and was vindicated a half century later in Brown v. Board of Education.

But for sheer influence — both legally and culturally — I think Holmes’s dissent in Abrams is the greatest in our history. And I don’t think too many scholars would disagree.

Thomas J. Healy August 25th, 2013 at 2:19 pm
In response to greenwarrior @ 19

You’re welcome. I thought it was important to provide some visuals for people. I wish I could have also included some recordings of the main characters speaking. It was a real pleasure for me the first time I heard a recording of Holmes. There is only one as far as I know, and it comes from a CBS radio show on his 90th birthday. It’s available on one of those Great Speeches tape sets.

greenwarrior August 25th, 2013 at 2:19 pm

You write about him always having a succession of promising young law students being his secretaries. Do you think you would have enjoyed being his secretary?

Peterr August 25th, 2013 at 2:22 pm

What a wonderful book!

One of the aspects of the book that makes it so powerful is the way the various cases are presented in their historical and social context, particularly around war and around the struggles of the labor movement. I was taken aback, though, with the episode near the end as Holmes circulated his dissent to his colleagues. Not only did they not approve of his dissent (as one might imagine from the fact that it was a dissent), but three of them asked him to withhold his dissent “for the sake of national security.” The Boston Police Department had been disbanded over attempts to unionize its officers, steelworkers were on strike, President Wilson had suffered a stroke, . . . As you summarized their argument to Holmes, “At a time like this, with the future of the country at stake, it was important for the Court to speak with one voice.”

And Holmes said “no” and issued his dissent.

On the surface, it’s easy to read SCOTUS decisions in the abstract. Your book, however, made the abstract very concrete. Indeed, it was the concreteness of the threat to free speech as felt by his friends (Laski in particular) that forced him to reconsider his approach.

Thanks for this book!

Thomas J. Healy August 25th, 2013 at 2:22 pm
In response to bmaz @ 21

I give Hand credit for starting the whole thing in process because when he and Holmes ran into each other a train during the summer of 1918 he raised the issue of free speech and then continued it by letter.
Dershowitz is right that Holmes did not adopt Hand’s precise view of free speech — and I make this clear in the book. In fact, as the book notes, Hand eventually drops out of the lobbying effort, which is then carried on by Harold Laski and Zechariah Chafee. As for the specific position Holmes ultimately adopts, Chafee deserves most of the credit — and again, I make that clear in the book.
So I was a little surprised by Dershowitz’s comment, but don’t hold it against him. It’s hard to write a review that accurately captures everything about a book on such short notice.

emptywheel August 25th, 2013 at 2:23 pm
In response to Thomas J. Healy @ 9

Glad you brought up that word — imminent. Care to talk about the way it has been expanded of late (I’m thinking of the targeted killing white paper)?

I guess, which is another way of what do you think has been MADE of Holmes’ opinion, aside from protecting speech more than in the UK?

Thomas J. Healy August 25th, 2013 at 2:25 pm
In response to greenwarrior @ 26

What’s not to enjoy. You spend time with a great thinker, do little work, have plenty of time to read and talk with Holmes and his wife, and then afterward you can always say you worked for the greatest judge in American history.
On a personal note, I did have the opportunity to work for a great judge –Michael Daly Hawkins, who sits on the U.S. Court of Appeals for the 9th Circuit. I’m not sure I would have traded that clerkship for anything.

emptywheel August 25th, 2013 at 2:25 pm

Had you read Metaphysical Club before you started (I saw that it was in your bibliography). Your book seemed almost like the flipside of that.

bmaz August 25th, 2013 at 2:25 pm

Oh, this had gone so well, and you had to up and mention Lochner…..

In that regard though, Lochner really is an important case, and there is a sect of advocates and scholars that really would like to resuscitate it (several of whom are at Volokh and I know a little). What do you think Holmes would make of the neo-Lochnerism today?

greenwarrior August 25th, 2013 at 2:26 pm

I’m curious about the photos on the book jacket. Who is that speaking in the lower photograph? What was the event?

emptywheel August 25th, 2013 at 2:26 pm

Ah, thanks for that–Ignore my later question, which hadn’t see Mike’s.

Thomas J. Healy August 25th, 2013 at 2:27 pm
In response to Peterr @ 27

Thanks for the nice comments. I do agree that the visit by the justices to Holmes’s study is a really remarkable moment. As Andrew Cohen put it in his review in the Atlantic, can you imagine Justices Kennedy, Alito and Thomas visiting Scalia at his home to try to persuade him to withhold an opinion? The Court was, in some ways, much less formal and sophisticated in those days.

Peterr August 25th, 2013 at 2:29 pm

In a couple of places, you say something along the lines of “in a never-before noticed letter . . .” What was the most surprising piece of unnoticed writing that you came across in your research?

Thomas J. Healy August 25th, 2013 at 2:29 pm
In response to emptywheel @ 29

I’m not sure I understand the question fully, but one thing that has happened is that Holmes’s opinion has been used to provide protection for speech in a range of circumstances that I’m not sure Holmes would have been comfortable with. For instance, the Supreme Court has taken the notion of the marketplace ideas very literally in the context of commercial speech — basically, advertising. Fifty years ago, regulation of advertising was not considered an infringement of speech — it was considered a regulation of economic conduct. But the modern Court has provided sweeping protection for speech by commercial actors.

Thomas J. Healy August 25th, 2013 at 2:31 pm
In response to emptywheel @ 31

Yes, I had read the Metaphysical Club – several times in fact — and really loved it. I loved how Menand was able to make ideas come alive and was trying to do the same thing in my book. As I said in response to an earlier question, I view my book as a sequel or spin-off to the Metaphysical Club.

bmaz August 25th, 2013 at 2:32 pm
In response to emptywheel @ 31

Also: see Thomas’ response to Mike Konczal at 20 above re: Metaphysical Club.

Peterr August 25th, 2013 at 2:32 pm

The contemporary episode that repeatedly went through my head as I was reading this was Scalia’s duck hunting trips with Dick Cheney, at times when Cheney had some pressing issues before the Court.

Sometimes hunting is just hunting, but sometimes, it’s something more.

Thomas J. Healy August 25th, 2013 at 2:33 pm
In response to bmaz @ 32

I think he would have felt the same way now that he did then: the Court has no business interfering with the legislature’s choice about how to regulate the economy as long as the choice was not blatantly unconstitutional. Of course, it’s always difficult to decide what is blatantly unconstitutional, but Holmes was willing to give the government a pretty long leash, and I think he would feel the same way today.

The fact that there are neo-Lochnerites today just goes to show that we continue to fight the same battles over and over again. Once you think an issue has been resolved, it just pops up again in a new disguist.

RevBev August 25th, 2013 at 2:34 pm
In response to Peterr @ 40

That one was definitely More…;)

DWBartoo August 25th, 2013 at 2:35 pm

Absolutely superb and very timely Book Salon!

My appreciation, Thomas and bmaz, to both of you.


Thomas J. Healy August 25th, 2013 at 2:36 pm
In response to Peterr @ 36

There is a letter that Frankfurter wrote to his fiance the same week the Supreme Court heard arguments in the Abrams case. Prior to finding that letter, I knew that Frankfurter and Laski had been trying to persuade Holmes to write some kind of article because he had sent them responses saying he couldn’t. But the letters from Frankfurter and Laski have not survived, and I wasn’t positive what they said based on Holmes’s responses. But the letter Frankfurter wrote to his wife — in which he says that the editor of the Atlantic Magazine will publish an article on tolerance if Frankfurter can get someone like Holmes to write it made the whole picture come together. It was really one of those Eureka moments where I was jumping up and down because I finally had the last piece of the puzzle.

Thomas J. Healy August 25th, 2013 at 2:37 pm
In response to Peterr @ 40

That’s funny, I thought of the duck-hunting episode too. Compared to some of the contacts Brandeis had with the Wilson administration, the duck hunting incident is quite tame!

greenwarrior August 25th, 2013 at 2:38 pm

A number of people prominent in your book are Jewish, from Russian immigrant anarchists not wanting the war to extend to Russia to the circle of progressive lawyers who were dear friends to Holmes and also lobbying him to change his views. It seems like we can thank the resultant dissent of Holmes on the beliefs and actions of a number of Jewish people.

Peterr August 25th, 2013 at 2:38 pm

And then, “Quasi in Furore,” the book all came together?


Thomas J. Healy August 25th, 2013 at 2:39 pm
In response to greenwarrior @ 33

Sorry, missed this one earlier. If I recall correctly, his name is Jim Ruttenberg, and he’s speaking as part of the May Day parade in Cleveland in 1919, which I describe in Chapter 10. It was a riotous day, with one person killed, 100 wounded, and scores of socialists arrested.

Peterr August 25th, 2013 at 2:41 pm

I also enjoyed the chapter with the reactions of Holmes’ contemporaries to the dissent, once it was published.

Have your gotten any reactions to your book from any federal judges? No names need be mentioned, but I’d really be curious to hear how today’s judiciary has received your book.

greenwarrior August 25th, 2013 at 2:41 pm

Ah, as I read the book, I was thinking it might be Eugene Debs.

Thomas J. Healy August 25th, 2013 at 2:41 pm
In response to greenwarrior @ 46

Absolutely. And I think that’s one of the interesting things about this story — the fact that this aristocratic Boston Brahmin who could trace all three of his names back to the earliest settlers was so profoundly influenced by these young Jewish progressives. Holmes had his faults, certainly. But he was definitely not antisemitic.

Thomas J. Healy August 25th, 2013 at 2:42 pm
In response to Peterr @ 47


greenwarrior August 25th, 2013 at 2:43 pm

One of the things that struck me was how agreeable most everyone was in their letters even when disagreeing vehemently. We don’t seem to see much of that kind of polite discourse these days.

Thomas J. Healy August 25th, 2013 at 2:43 pm
In response to Peterr @ 49

I haven’t but it’s still early. I’m curious to see how they respond to the implicit thesis of the book that personal considerations influence the law as much as logic and precedent. That’s something Holmes believed in strongly, but most judges are reluctant to acknowledge.

Thomas J. Healy August 25th, 2013 at 2:43 pm
In response to greenwarrior @ 50

He has too much hair to be Debs!

Thomas J. Healy August 25th, 2013 at 2:45 pm
In response to greenwarrior @ 53

That’s true, but remember that the people I’m writing about were all friends. Laski and Frankfurter could be pretty nasty when writing about people they disagreed with.

Still, I do think there was a level of cordiality in public discourse that has eroded somewhat. And ironically, we can thank Holmes for that. His opinion has led to later Supreme Court decisions that celebrate robust and sometimes chaotic and profane public debate.

Thomas J. Healy August 25th, 2013 at 2:46 pm
In response to DWBartoo @ 43

Thanks. Glad you enjoyed it.

bmaz August 25th, 2013 at 2:48 pm

If I might pick up a bit on what Marcy was asking as to “imminent”. “Imminent danger” was, and is, crucial to the equation on the free speech issues confronted by Holmes. Marcy and I work a lot in the area of national security policy and law, and “imminence” is a key feature of determination of legality of military strikes (for brevity, think drones) and action off the active battlefield. In the “White Paper” the Obama Administration has issued justifying its targeted killing policy, the Administration has expanded “imminence” beyond belief. How broad or narrow was Holmes’ view of “imminent” in this regard as they both, at root, go to “danger”.

DWBartoo August 25th, 2013 at 2:48 pm

Thomas, do you consider that members of the legal profession in this nation, including attorneys in the provinces, as well as judges and other officers of the court, are fully aware of the increasing threats to free speech, and indeed, to the Rule of Law itself? Or, is there a complacency about the current “interest” of the political class in secrecy, secret law, and the suppression of dissent, generally?

While I am aware of a number of gifted attorneys, such as bmaz and others here, at FDL, who speak openly to these issues, I note a rather significant silence from many attorneys; is this due to embarrassment or simply lack of awareness.

One thinks of the behaviors of attorneys in other nations who, rather recently, have stood up, alongside the people, in demanding change, but also educating the people in the language and mechanisms necessary to effect political change.

In other words, are politics, and especially “executive branch” politics, now dictating the law and rendering “checks and balances” a mere “quaint” notion, arising from that “quaint piece of paper”?

Do we still possess a democratic republic or are we in the process of losing it, as Carter has, quite recently, suggested that we might be?


Thomas J. Healy August 25th, 2013 at 2:49 pm
In response to Elliott @ 10

As I said in another response, I came to this story because I teach First Amendment and have always wondered what made Holmes change his mind. I’m not sure if I’ll write similar books about other amendments or constitutional rights, but I certainly plan to write more books and am currently investigating several ideas.

greenwarrior August 25th, 2013 at 2:52 pm

You write about Holmes’ wife Fanny as going from sparkling and very vivacious to quite sickly and homely. And say “It was no suprise, then, that Holmes often sought the company of other women. He’d always been something of a flirt….”

I wondered actually which came first – his interests in other woman or Fanny declining.

From what you wrote, it seemed like he fulfilled his obligations with Fanny, but his love and excitement were reserved for other women (and also for his young progressive friends). I could see how a woman could decline from having a husband’s warmth and love be so other directed.

bmaz August 25th, 2013 at 2:52 pm

Ahem, care to wax a little on any modern day analogy to the king of modern angry dissent, Nino Scalia?

Thomas J. Healy August 25th, 2013 at 2:52 pm
In response to bmaz @ 58

Holmes was never really forced to define imminence, and the later Court has been reluctant to do so as well. I’ve written about this extensively in the context of speech that advocates unlawful conduct, and I think imminence should mean a couple of days except in cases where we’re talking about catastrophic harm, in which case I think the concept could be stretched considerably farther. I have a hard time believing the Court would say that advocacy of a nuclear attack doesn’t meet the imminence requirement because the attack wouldn’t take place until a month later.

Peterr August 25th, 2013 at 2:53 pm
In response to bmaz @ 58

In that same vein, the appearance of (and actions by) J. Edgar Hoover at the tail end of this story raises the same kind of question on the domestic side of things.

bmaz August 25th, 2013 at 2:58 pm

I think that is exactly right. Or an attack that is pretty much entirely theoretical because all that is known is that the target might would like to attack the US, or its interests. Words, like laws, need to have boundaries and limitation.

Thomas J. Healy August 25th, 2013 at 2:58 pm
In response to DWBartoo @ 59

That’s a great question and a difficult one to answer. I think there might be several reasons why more people aren’t up in arms about the NSA spying and the prosecutions of leakers.

First, Obama is a democrat and I think at least some liberals are less likely to criticize his administration than they would be if Bush were still in power. They may also trust his administration more not to abuse their power.

Second, I think some people are a bit complacent because of the extraordinary freedom we already have. It’s easy to look back at the time period I describe in my book and think we have it great now, even with the recent revelations about the NSA. Obviously, I think that’s a misguided way of thinking. Just because we have a significant degree of freedom compared with 100 years ago doesn’t mean we should let the government erode that freedom.

Finally, some of the recent free speech cases are different in really significant ways. Both Snowden and Manning were government employees (or in Snowden’s case, a quaso-government employee), and I think most free speech scholars agree that people in that position do not have a free speech right to leak classified government documents. It would be very hard for the government to operate effectively if any employee could leak any document he or she wanted to. That said, I do think the government has been overly aggressive in going after leakers and that the sentence Manning got was excessive.

greenwarrior August 25th, 2013 at 3:00 pm

The examples of hate speech and hate radio come to mind when talking about imminent. For example, Sarah Palin drawing target bulls eyes when referring to Democrats and lots of other speech related to killing and gun violence in the political arena shortly before the shooting of Congresswoman Gabrielle Giffords and others in Arizona. To me, all that behavior was a clear influence drip, drip, dripping over time. How can a determination be made in cases like this about imminence?

Thomas J. Healy August 25th, 2013 at 3:01 pm
In response to greenwarrior @ 61

Good point. It’s hard to say which happened first — Fanny’s decline or Holmes’s womanizing. I think in some ways they were mismatched. Fanny never did like socializing, while Holmes needed at least some of it to unwind from the hard thinking he did. In other ways, though, they were a good match, since I don’t think Holmes would have been happy married to some of the women he flirted with, since they would have taken time away from his work. Frankfurter and his wife Marion viewed the relationship between Holmes and Fanny as very one-sided, with Fanny doing most of the work.

Peterr August 25th, 2013 at 3:02 pm

Your answer reminds me of a story earlier this summer in the New York Times, as we awaited the rulings in the Prop 8 and DOMA cases:

Exhibit A for a Major Shift: Justices’ Gay Clerks
Published: June 8, 2013

WASHINGTON — As Justice Lewis F. Powell Jr. was struggling with how to cast the decisive vote in a 1986 Supreme Court case that would end up devastating the gay rights movement, he told his fellow justices that he had never met a homosexual.

In truth, one of his four law clerks that term was gay.

The atmosphere at the court today is far different from 1986, with a pace of change that may have surpassed that in the rest of society. Openly gay law clerks are now common in the chambers of both liberal and conservative justices. . .

“In addressing for the first time whether the law must recognize lesbian and gay couples as families,” said David C. Codell, who served as a law clerk to Justice Ruth Bader Ginsburg, “certain of the justices undoubtedly will reflect upon their real-world experiences of getting to know and to understand lesbian and gay people as individuals and as members of families.”

And certain of the justices undoubtedly will not.

Thomas J. Healy August 25th, 2013 at 3:04 pm
In response to bmaz @ 62

It’s true. If there is one justice today who has Holmes’s flair with words — especially in dissent — it’s Scalia. The difference is that Holmes was rarely nasty toward his colleagues in dissent. He was remarkably congenial and didn’t like friction. As a result, I think he was much more able than Scalia to bring his colleagues around to his way of thinking. Scalia could use some lessons in that, although I’m secretly kind of glad he’s not better at it since then his influence would be even greater than it is.

Thomas J. Healy August 25th, 2013 at 3:08 pm
In response to greenwarrior @ 67

That’s a great point. It’s very hard in cases like that to figure out which speech is the last straw that leads to something like the shooting of Giffords. The problem is dealt with somewhat by the fact that “true threats” are not considered protected speech. So if someone were to threaten a person like Giffords, they could be arrested even if they didn’t carry out the threat. But there are still instances where people don’t actually make threats, but their speech leads other people to break the law. And I think as long as there is time for counterspeech and listener reflection, we have to protect that speech. Otherwise, the chilling effect will make people too cautious about what they say.

greenwarrior August 25th, 2013 at 3:09 pm

Aaron Swartz committed suicide because of how aggressive the government was with him.

Tim DeChristopher was recently released from jail for bidding to save endangered land. Even when people who did have the money were willing to make good on the bids, the government didn’t allow it. And the auction was illegal in the first place. Yet, Tim still went to jail.

In my opinion, we live in a very dangerous time right now. Without our whistleblowers, the rest of us only have our suspicions of the amazing assault of our government on our freedoms. The whistleblowers need all the protection they can get so that we have the information to potentially act on the abuses of our government. How can that happen if we are prosecuting whistleblowers? If we are causing sovereign president’s planes to be grounded? If we are causing reporters and their aides to be stopped at borders and have their electronics seized?

DWBartoo August 25th, 2013 at 3:09 pm

Would not those scholars also agree that there ARE times when government malfeasance or even governmental actions which strike at foundational principle/ and, or undermine society, say, by allowing or condoning slavery, promulgating the use of weapons of terror, or by permitting, for example, a class of individuals to bring a nation’s economy to its knees, throwing millions out of work and millions out of their homes, as well as destroying a two-hundred year old legal framework of property ownership, to do so with utterly no meaningful legal consequence for the individuals, specific individuals, as we know, and whose culpability could be established, were the intent to do so actually embraced by that government?

My concern is that the “government” supposedly composed of public servants, has come to regard itself as master … the result of the corrupting “influence” of both power and money … one notes the “revolving door” in passing … such that now “the people” are regarded as “the enemy”.


bmaz August 25th, 2013 at 3:10 pm

Man, completely agree about being glad Scalia is not a little more charming with his dissents. I think, and I find myself shocked to be saying this, but Elena Kagan is developing a flair for the pointed dissent, as did Ginsburg and then Sotomayor before her. Maybe it is because it was unexpected, but I have really noticed some budding skill out of Kagan though.

Thomas J. Healy August 25th, 2013 at 3:10 pm
In response to Peterr @ 69

I have to think that the experiences and identifies of their clerks would influence the justices at least somewhat on an issue like this. Powell reportedly said that part of the reason he voted to uphold the conviction in that case was because he thought the laws prohibiting sodomy were so rarely enforced. That may have been true, but little comfort for the defendants in the case or the other people who had to live in fear of arrest.

Peterr August 25th, 2013 at 3:12 pm

Today, by various accounts, justices amend their early drafts of both opinions and dissents to try to either win over their colleagues or to respond to them. Was that as true in Holmes’ day as it seems to be now, or were they much more individual in their writing?

On the one hand, input from others can be helpful, as a good editor often helps even the best writer. On the other hand, writing by committee rarely turns out felicitously.

Thomas J. Healy August 25th, 2013 at 3:13 pm
In response to greenwarrior @ 72

As I said, I think the government has been too aggressive in prosecuting leakers. I also agree that, once information is leaked, newspapers and other outlets have to be free to circulate it and report on it. And yes, we do need whistleblowers, and there should be some better mechanisms in place to allow them to shed light on government misconduct. But I still don’t think you can just say that all government employees have a first amendment right to leak whatever classified information they think is important. I just don’t see how the government fulfills its responsibility of protecting national security if that is the law.

Thomas J. Healy August 25th, 2013 at 3:15 pm
In response to DWBartoo @ 73

Yes, as I say in response to greenwarrior, there does need to be a mechanism in place for government employees to shed light on misconduct. And I absolutely agree that we all have to be vigilant — “eternally vigilant” — in Holmes’s words.

masaccio August 25th, 2013 at 3:16 pm

The Metaphysical Club gives us a good grasp of pragmatism, which, among other things, says that there is no such thing as absolute truth. That, of course, is a radical notion, and one that apparently a lot of Americans today would hate.

It seems to me that there is a good bit of this idea in the actual dissent:

“But when men have realized that time has upset many fighting faiths, they may come to believe even more than thy 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. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.

By the time of this decision, pragmatism was a reasonably well-known theory, and I wonder if Holmes regularly thought about issues this way, or whether he was guided by some other basic philosophy at this stage of his life.

Thomas J. Healy August 25th, 2013 at 3:16 pm
In response to bmaz @ 74

Yes, Kagan and Sotomayor have been really pleasant additions to the Court — both incredibly smart with strong personalities and not afraid to take on the conservative majority.

Thomas J. Healy August 25th, 2013 at 3:18 pm
In response to Peterr @ 76

The justices occasionally asked for edits during Holmes’s time, but far less so than today, I think. And the opinions were so much shorter. You can read a Holmes opinion in about five minutes compared to the two or three hours it sometimes takes to read opinions today.

As for writing by committee, Holmes agreed entirely and used to hate it whenever one of his colleagues would suggest a change to his opinions.

greenwarrior August 25th, 2013 at 3:20 pm

What do you do about a government who classifies things related to spying on everyone? It’s not constitutional, but if they classify it and then have the right and exercise the might to prosecute whistleblowers, how do we live in freedom?

Thomas J. Healy August 25th, 2013 at 3:20 pm
In response to masaccio @ 79

I think you’re absolutely right to see elements of pragmatism in Holmes’s dissent. He did not believe in the notion of transcendent universal truths, at least not that we can identify. And that’s part of the reason he thinks we need free speech.

bmaz August 25th, 2013 at 3:21 pm

Holmes was appointed by Theodore Roosevelt to further Roosevelt’s progressive agenda, which Holmes did not largely do very much, at least prior to the Abrams case.

Tell us little bit about the other parts of the progressive agenda that Holmes may have evolved and/or changed on post Abrams.

Thomas J. Healy August 25th, 2013 at 3:22 pm
In response to greenwarrior @ 82

Overclassification is a huge problem, as is the selective leaking of classified information by high-ranking administration officials. To my mind, those are the two strongest factors cutting in favor of Manning and Snowden, and I think both have to be addressed. I’m not sure, however, if the Courts are the right entity to tackle that problem.

masaccio August 25th, 2013 at 3:24 pm

It is really impressive that Holmes was able to enjoy the brilliance of the likes of Frankfurter, Laski and Brandeis, even though he was much older. It gives all us old guys a real hope that as age cohort passes on, we can still learn from the next generations. I hope so, anyway.

DWBartoo August 25th, 2013 at 3:25 pm

Unfortunately, “national security” does not necessarily mean the same thing to everyone. One could argue that real national security is not the size of a military but the well-being and good health of the members of a given society. And when “national security” is state secrecy, then how may citizens give their consent, their informed consent, to be governed by a government which will not make clear the very vast majority of what that government is doing in the name of those citizens?

Does the burden not lie on the government to make the case, as openly and as reasonably, not as political expediency might wish, but as justice and the truth require?

Too often, discussions, such as this one, reach the point of “national security” and are shut down by self-censoring, when, in fact, it is in times such as these that further, deeper, and more profound discussion is precisely what is required of a democracy.

What do you think are the reasonable and rational limits of national security? Are there any? I consider that there must be, for trust is now quite eroded, as well it should be, and it will not be rebuilt without diligent and honest effort … an effort I have yet to see the political class embrace … causing me to ponder what culpability or fear doth hold their tongues to silence or fabulist nonsense?


Thomas J. Healy August 25th, 2013 at 3:26 pm
In response to bmaz @ 84

Roosevelt selected Holmes in part because he thought Holmes would support his progressive agenda with respect to labor and trusts. As a judge on the Massachusetts Supreme Court, Holmes had written several opinions arguing for the right of labor to strike. Once on the Court, however, Holmes disappointed Roosevelt by siding against the government in its antitrust suit against J.P. Morgan and James Hill. In other cases, however, Holmes did support the progressive agenda — primarily by arguing that it was not the job of the Court to second-guess the economic choices of the legislature.

Thomas J. Healy August 25th, 2013 at 3:27 pm
In response to masaccio @ 86

That’s what kept Holmes young, I think. He really thrived off the attention of those young men, and they, in turn, benefited from his wisdom and experience. And you’re right, we should all hope we’re so lucky.

greenwarrior August 25th, 2013 at 3:28 pm

If not the courts, then what? The executive isn’t going to rein itself in. Both Congress and the White House are captured by and beholden to the corporate world. Dissent is becoming criminalized. The police are becoming militarized. Do you see another avenue other than the courts?

Or, to ask a different question, why wouldn’t you think the Courts are the best place to look for solutions?

DWBartoo August 25th, 2013 at 3:29 pm
In response to masaccio @ 86

Superb comment, masaccio.


Thomas J. Healy August 25th, 2013 at 3:30 pm
In response to DWBartoo @ 87

I agree that “national security” should not be a conversation stopper, and I didn’t mean to use it as one. We should certainly question the government’s claims of national security, and perhaps leakers should be protected unless the government can show that the documents leaked did in fact bear some real relationship to “national security,” however we might define it. I haven’t yet worked out a complete theory with respect to free speech and leakers (too busy writing this book!) but appreciate you pushing back on these questions.

CTuttle August 25th, 2013 at 3:33 pm

Aloha, Thomas and bmaz…! What would Holmes think about the new ‘Trespass Bill’ that Obama just signed into law…?

Thomas J. Healy August 25th, 2013 at 3:34 pm
In response to greenwarrior @ 90

I’m just having a hard time at the moment figuring out how the Courts rule on the issue of overclassification or selective leaking. Overclassification is not itself a crime, so how does a Court tell the government to stop doing it. And how does a Court weigh in on selective leaking when the people doing it are not prosecuted — because, of course, they are the ones in charge. It’s not so much that I think the Courts have no role in this issue; I’m just having a hard time imaginging the scenario in which the issue would be presented to them.

I suppose the most likely scenario is a case like Snowden’s in which part of his defense is that he should not be prosecuted for leaking because overclassification and selective leaking have made the law he is accused of violating moot. Maybe that would work, but I’d have to think about it some more.

DWBartoo August 25th, 2013 at 3:34 pm
In response to greenwarrior @ 90

To further greenwarrior’s comment: Given that this nation was effectively lied and bullied into a recent war … and given that neither Congress nor the Court has, apparently, even noticed this blatant fact, how might we come to have the reasonable hope that there is any effective remedy to executive overreach, reflecting, now, a seventy-year old capitulation of the other two branches?


bmaz August 25th, 2013 at 3:35 pm

There was a path from the Abrams dissent by Holmes to today’s First Amendment law that included the Brandenburg case and, of course, the New York Times v. United States case. Can you describe how Holmes and Abrams set the stage for and affected those decisions and First Amendment law up to today’s date?

greenwarrior August 25th, 2013 at 3:36 pm

Another issue that seems related to the First Amendment is National Security letters where you’re ordered to do or not do something by the government, but then prohibited from noting that you received a letter or what it says.

That may have been the impetus for the recent closing shop of some encryption related sites (that would interfere with the government’s spying).

greenwarrior August 25th, 2013 at 3:37 pm

Thanks, I appreciate your being willing to consider it. It means a lot to me.

masaccio August 25th, 2013 at 3:38 pm

You write that Holmes saw himself as an ideast as opposed to a thingster, that he wasn’t that fond of facts and wanted to know as little as possible about them as possible before he wrote. At the same time, his most famous teaching is that “the life of the law has been experience” Pragmatism is almost exclusively concerned with experience. As Rorty says, more or less, the truth is whatever we are willing to use as a basis of action.

It seems these are inconsistent ideas, doesn’t it?

DWBartoo August 25th, 2013 at 3:38 pm

Well then, Thomas, I truly appreciate your appreciation, and look forward (to use the fashionable term) to your book on this topic of “national security and freedom of speech” … as I consider it will be topical … and very important … for much of the foreseeable future.


bmaz August 25th, 2013 at 3:38 pm

No, hard to see that as an Article III function. That limitation and restraint will have to come from Article I Congress.

Thomas J. Healy August 25th, 2013 at 3:39 pm
In response to CTuttle @ 93

I haven’t read the full law, but based on media reports it sounds like a classic Time, Place, Manner regulation, which means that it doesn’t regulate speech based on its content but instead based upon the time, place or manner in which it takes place. TPM regulations, as they are known, are pretty well-accepted as long as the government has an important interest, the regulation is substantially related to that interest, and it leaves open adequate alternative avenues of communication. Assuming the trespass law passes that test (and, having not read the law, I don’t know whether it does), I think Holmes would be fine with it.

To provide an example, of course we want people to be able to use the streets to communicate. But if a group wants to hold a parade during rush hour on main street, that interferes with other people’s use of that street. So ordinarily, government requires you to go through some sort of licensing process before you can hold your parade.

Peterr August 25th, 2013 at 3:39 pm

Overclassification could come to the court via a FOIA case. If a FOIA request is denied, and the the requester has some kind of evidence to prove overclassification to avoid embarrassment (rather than truly for security reasons), they the government is guilty of violating the FOIA laws.

Of course, finding the proof sufficient to say you’ve got a case in the first place might be quite a neat trick . . .

greenwarrior August 25th, 2013 at 3:41 pm
In response to bmaz @ 101

What does that mean? Article I, Article III?

Thomas J. Healy August 25th, 2013 at 3:41 pm
In response to DWBartoo @ 95

Well, the Supreme Court did step in and strike down some of the Bush administration’s most egregious violations of law. But basically, I think the answer is that the only solution to executive and legislative overreaching is for “the people” to keep pushing back and demanding change. It’s a slow process, but it’s the one that democracy gives us.

Thomas J. Healy August 25th, 2013 at 3:44 pm
In response to masaccio @ 99

That’s an odd little paradox about Holmes — and not the only one. He was one of the founders of the sociological school of jurisprudence, which elevated facts and data above arid legal reasoning. And yet, Holmes himself like to stay in the clouds. I can’t reconcile the inconsistency, but do think it makes him a very intriguing figure.

Peterr August 25th, 2013 at 3:44 pm
In response to greenwarrior @ 104

Article I of the constitution = Congress
Article III = Federal Courts

CTuttle August 25th, 2013 at 3:44 pm

Mahalo for your prompt reply, Thomas…! But I question the punishment aspect, making it a felony offence with significant jail time for free speech activity…!

Thomas J. Healy August 25th, 2013 at 3:44 pm
In response to greenwarrior @ 104

Sorry, bmaz resorted to some lawyer speak. Article I is the part of the constitution that creates Congress, Article II creates the presidency, and Article III creates the courts.

greenwarrior August 25th, 2013 at 3:45 pm
In response to Peterr @ 107

Thanks Peterr.

Thomas J. Healy August 25th, 2013 at 3:45 pm
In response to Peterr @ 103

That’s a good idea, but I wonder how many FOIA appeals one would have to bring to start making a dent in overclassification.

greenwarrior August 25th, 2013 at 3:46 pm

And thanks Thomas.

bmaz August 25th, 2013 at 3:47 pm

I agree. A lot of this type of question came up during the Occupy encampments nearly two years ago. Under fairly long established law, including notably Clark v. Community for Creative Non-Violence, reasonable and non-disciminatory TPM laws and regulations pass muster.

Thomas J. Healy August 25th, 2013 at 3:47 pm
In response to CTuttle @ 108

Doesn’t the law cover areas under the protection of the Secret Service? The government doesn’t mess around when it comes to the safety of the President, and given the crazy things people sometimes say about this president, I can’t say I blame it.

bmaz August 25th, 2013 at 3:48 pm
In response to greenwarrior @ 104

Congress is Article I of the Constitution, Executive Branch/President is Article II and the courts are Article III.

TarheelDem August 25th, 2013 at 3:50 pm

What is the likelihood that US v. Reynolds will ever be reversed, given the fact that it was patently a case of overclassification?

And are precedents slow-walking us to an absolute state secrecy doctrine?

Thomas J. Healy August 25th, 2013 at 3:51 pm
In response to bmaz @ 96

After Abrams, the Court gradually embraced the notion of clear and present danger, but then the Cold War came along and the Court caved in to McCarthyism in the 1950s. But in the late 1960s, it revived the clear and present danger test in Brandenburg, holding that advocacy of unlawful conduct can only be punished if it is “directed to and likely to cause imminent lawless conduct.” That’s basically Holmes’s test.

In New York Times v. Sullivan, the Court overturned a libel verdict against the Times for running an ad related to the civil rights movement. In the process, the Court ruled that the government cannot punish seditious libel, which is essentially criticism of the government. Holmes had said something similar in his Abrams dissent.

masaccio August 25th, 2013 at 3:51 pm

Indeed, and one of the things you note as a criticism of Holmes is that he didn’t always think things all the way through. Your work makes me feel like he is coming slowly from a prior position to a new position, hardly aware himself of the evolution of his thought at first.

BevW August 25th, 2013 at 3:52 pm

As we come to the last minutes of this great Book Salon discussion,

Thomas, Thank you for stopping by the Lake and spending the afternoon with us discussing your new book, and for this timely discussion about the First Amendment.

bmaz, Thank you very much for Hosting this great Book Salon.

Everyone, if you would like more information:

Thomas’ website (Seaton Hall) and book (The Great Dissent)

bmaz’s website(Emptywheel.net) and twitter

Thanks all, Have a great week. If you would like to contact the FDL Book Salon: FiredoglakeBookSalon@gmail.com

Thomas J. Healy August 25th, 2013 at 3:52 pm
In response to TarheelDem @ 116

I’d slay the chances are slim. The courts show little willingness to overrule the state secrets doctrine.

bmaz August 25th, 2013 at 3:52 pm

In the post I mentioned what I think are likely pressing concerns to most readers of this blog, the 1st Amendment concerns of the new prosecutions:

So far, no journalist has been criminally charged, but the enterprise is under collateral assault from such prosecutions. However, Fox News correspondent James Rosen has been listed as a criminal target in a criminal subpoena affidavit in US v. Kim, and New York Times national security reporter James Risen is facing incarceration for contempt over his refusal to testify about his sources in US v. Sterling. With the clear anger of the United States government at journalist Glenn Greenwald over the Snowden leaks, and members of Congress like Peter King screaming to prosecute Greenwald and other journalists for treason and espionage, the health and protection of the First Amendment is once again in question.

Out of this paradigm there is a growing concern that the Executive Branch really will resort to charging journalists. The breadth of law may strongly disfavor that, but even in the New York Times case, there is nothing prohibiting it. How can the lessons of Holmes guide discussion of this issue?

masaccio August 25th, 2013 at 3:53 pm

I forgot to mention how much I like this book, not just for the intellectual history, but for the historical context. That speech of Debs’ is too long for us moderns (tl:dr), but it is a powerful group of ideas that must have been profoundly inspirational in the day.

DWBartoo August 25th, 2013 at 3:53 pm

While I agree, Thomas, that it is up to us, I hold that we must examine the political process, what it has become, or become reduced to, at this point. There is more to effective citizenship in a democracy than spending fifteen minutes in a voting booth.

That requires open and continuing discussion.

As a people, however, we are intentionally mis- or under informed-, by a media very willing to censor itself (causing me to wonder if the Guardian actually realizes just how often the Grey Lady has informed the government BEFORE sharing critical information with the public, if it shares that information at all). The “sexing” up of the war rhetoric required that the (traditional) media be fully on board … just as the “political process and pundits” require that only two parties may effectively join the political discussion.

We must move beyond myths of what constitutes citizen actions, to a reality of informed and courageous citizenship that requires public servants to actually BE servants, not of the elite or their own pocketbooks, but rather the thoughtful, concerned, and RESPONSIBLE servants of ALL of the people. WE are speaking of change in the notion of “leadership”, here, one beyond sociopathic dreams of irresistible and excessively exuberant dreams of unfettered, unassailable greed.


greenwarrior August 25th, 2013 at 3:53 pm

Thanks for a little recent history on how the Holmes dissent has affected cases going forward. It helps in understanding the importance of his dissent.

Thomas J. Healy August 25th, 2013 at 3:54 pm
In response to BevW @ 119

Thanks Bev and bmaz and thanks to all those who asked questions. It was a really rewarding experience.

Peterr August 25th, 2013 at 3:54 pm

As the penalty for failure to comply with a FOIA request is probably nothing more than requiring the document to be produced, I’m guessing it would do little to stem the tide.

On the other hand, if Congress were to make the penalty personal — by holding the one doing the improper classification liable, and perhaps forfeiting their employment if not their money — that might get people’s attention.

Thomas J. Healy August 25th, 2013 at 3:55 pm
In response to DWBartoo @ 123

You would like the writing of Justice Brandeis, who said some similar things in his concurrence in a case called Whitney v. California.

Thomas J. Healy August 25th, 2013 at 3:56 pm

Signing off now. Thanks again to everyone for the very thoughtful questions and stimulating discussion.

DWBartoo August 25th, 2013 at 3:57 pm

Again, a most superb Book Salon!!

Thank you, Thomas, bmaz, and bev …

Thanks to the many Firedogs who are willing to discuss what matters, even if unpopular or downright dangerous.



CTuttle August 25th, 2013 at 3:58 pm

Mahalo, Thomas, bmaz, and Bev for another excellent Book Salon…!

TarheelDem August 25th, 2013 at 3:58 pm

Very informative forum, Thomas. Thanks, bmaz for hosting it.

Thanks BevW for another excellent selection.

greenwarrior August 25th, 2013 at 3:59 pm

Thanks for hosting bmaz and thanks Bev for your incredible efforts to bring these ideas and authors before us.

bmaz August 25th, 2013 at 4:00 pm

Thank you Thomas for joining us, and thank to one and all who participated. As Masaccio said above, this really is a fantastic book. It is not a dry legal treatise, it is an excellent read and I heartily recommend it. As always, big thanks to Bev Wright for everything she does to make Book Salon what it is.

DWBartoo August 25th, 2013 at 4:00 pm

Ah, I do like Brandeis, very much, Thomas.

And now, add you to the list of those whom I fully appreciate as legal scholars, of depth, perspective, and abiding humanity.

Much appreciation to you.


Elliott August 25th, 2013 at 4:00 pm

Thank you so much for coming, best of luck with your book

and nice work, bmaz!

Thanks BevW!

masaccio August 25th, 2013 at 4:08 pm
In response to Elliott @ 135

Thanks for spending time with us. This book is a worthy successor to The Metaphysical Club.

Sorry but the comments are closed on this post