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.]
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