Free speech as we know it

Published: Saturday, Sept. 21, 2013, 9:00p.m. Updated 9 hours ago

Americans today don't hesitate to blast government officials at all levels because of the First Amendment: Congress shall make no law ... abridging the freedom of speech, or of the press ... .

Yet the free-speech protection we enjoy wasn't truly established until well into the 20th century. And Oliver Wendell Holmes was hardly a champion of individual rights but is now seen as the father of the First Amendment as we know it because he wrote a dissenting U.S. Supreme Court opinion that stunned his contemporaries as a dramatic reversal of his views.

And in another irony, two members of the then-young progressive movement played key roles in that reversal, without which today's conservatives might well be facing prosecution for criticizing progressive President Obama.

Just how and why that reversal came about is the subject of The Great Dissent: How Oliver Wendell Holmes Changed His Mind and Changed the History of Free Speech in America (Metropolitan Books) by Thomas Healy, a Seton Hall University law professor.

Holmes disdained all individual rights, according to the publisher. Joshua Hawley, a University of Missouri associate law professor who clerked for Chief Justice John Roberts, describes Holmes in his Wall Street Journal review of the book as an advocate of judicial restraint who thought courts should overturn the judgment of democratic legislatures in only the most extraordinary of circumstances.

Thus, it was no surprise when, in March 1919, Mr. Justice Holmes and his colleagues unanimously upheld 1917's Espionage Act, which had outlawed criticism of America's World War I draft and involvement, thereby approving prosecution of Socialist Party head Eugene V. Debs for such criticism. But just months later, in a similar case involving anarchists, Holmes wrote in a dissenting opinion that the government could punish speech only if it produces or is intended to produce clear and imminent danger ... .

What happened in the interim to change Holmes' stance? Drawing on what the publisher calls newly discovered letters and confidential memos, Healy shows that Holmes was persuaded by three young Harvard law professors. Two were progressives future Supreme Court Justice Felix Frankfurter and future British Labour Party chairman Harold Laski and one decidedly was not: Zechariah Chafee Jr., author of an article that Hawley says extolled free speech for its social value and influenced Holmes' thinking.

Chafee's social value argument was reflected in his landmark dissent: (T)he best test of truth is the power of the thought to get itself accepted in the competition of the market ... . Holmes had come to believe that free speech would help democratic majority rule work best, by allowing wide-ranging debate to aid in building consensus.

Being a dissent, Holmes' radical opinion changed nothing immediately. But over time, it became a key underpinning of today's concept of First Amendment free-speech protection. And thus, 1919's progressives largely brought about a change in jurisprudence that has aided both the heirs to their cause and those heirs' opponents one that today's conservatives consider an indispensable aspect of individual American liberty.

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Free speech as we know it