The Unlikely Birth of Free Speech in America

For all the horrors that marked 1919 in America — the race riots, the terrorist attacks, the labor unrest — there was one unquestionably positive development. On Nov. 10, a hundred years ago Sunday, Supreme Court Justice Oliver Wendell Holmes issued a remarkable opinion that gave birth to our modern understanding of free speech.

It was a complicated delivery. Despite its centrality to our culture today, the First Amendment in the early 20th century was largely a dead letter. The Supreme Court had never upheld a free speech claim, and lower courts had approved the censorship of books and films, the prohibition of street-corner speeches and bans on labor protests and profanity. Even criticism of the government could be punished, the courts had ruled, if it threatened public order and morality.

Federal prosecutors vigorously enforced these acts, bringing nearly 2,000 indictments, many on the thinnest of pretexts. One person was convicted for forwarding a chain letter that called for an immediate end to the war. Another was jailed for asserting that the war benefited capitalists. And the courts largely acquiesced, ruling that the First Amendment offered no protection for speech with a “bad tendency” — essentially, any speech the government disliked.

It was in the midst of this hysteria that Holmes breathed new life into the First Amendment. He was an unlikely midwife. Holmes, 78 at the time, was descended from one of the oldest families in America. He was a graduate of Harvard Law School, a veteran of the Civil War and a member of the intellectual aristocracy that his father, a famous author, had labeled the “Brahmin caste of New England.” More to the point, he had done as much as any judge to render free speech meaningless.

As a state court judge in Massachusetts, he had ruled that there is no right to speak on public property or while working as a public employee. And after joining the United States Supreme Court, in 1902, he had embraced the cramped English view that free speech protects only against prior censorship but places no limits on the government’s power to punish speakers after the fact.

But the events of 1919 changed Holmes. A contrarian with a love of books and a fondness for debate, he was troubled by the wave of persecution that swept the country once the dangers of war had passed. He was especially troubled when that wave threatened to engulf two of his own friends, a legal scholar named Felix Frankfurter and a British political theorist named Harold Laski.

So when the two men came under attack for their “radical” views — Frankfurter for his support of labor unions, Laski for his socialist leanings — Holmes sprang to their defense. He wrote to the president of Harvard, where both men taught, and sought help from the Harvard Law School alumni association.

He also began to rethink his stance on the First Amendment, an endeavor his young friends encouraged. For more than a year, they waged an intense behind-the-scenes campaign to strengthen Holmes’s appreciation for free speech. They fed him books on political liberalism, wrote him long letters on the value of tolerance and engaged him in impassioned debates. At one point, Laski even arranged a meeting at his summer bungalow between Holmes and Zechariah Chafee, a Harvard law professor who had written an article criticizing the justice’s views. “You won’t forget that you are coming down on Saturday for the week-end,” Laski wrote Chafee. “Holmes is coming to tea, and I want you to arrive in good time. For I have given him your article and we must fight on it.”

Holmes did not change his mind all at once. In March 1919, he wrote three opinions for the court upholding the convictions of socialists for criticizing the war. These opinions hinted at an internal struggle. Holmes retreated from his earlier belief that free speech protects only against prior restraints. And he rejected the “bad tendency” test, writing that speech can be punished only if it poses a “clear and present danger.” But he failed to explain how the defendants’ speech met that test, falling back instead on his commitment to majority rule and judicial restraint.

Eight months later, when the court heard another case under the Espionage and Sedition acts, Holmes’s conversion was complete. By this point, Laski was in serious trouble, having spoken out in support of a labor strike by Boston police officers. The strike was a disaster; with no officers on duty, the city descended into chaos, and the soldiers who were brought in to restore order killed eight people. Laski’s support for the strike thus won him the enmity of the entire New England establishment. The press denounced him as an “boudoir Bolshevist,” while the Harvard Board of Overseers opened an investigation to determine whether he was fit to teach.

It was against this backdrop that Holmes wrote his famous defense of free speech. A majority of the court voted to uphold the latest convictions under the Espionage and Sedition acts. But Holmes, joined by his close friend Justice Louis Brandeis, dissented. Acknowledging the appeal of persecution, which he had once himself embraced, he now offered a powerful rebuttal:

"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."

With those words, Holmes provided a justification for free speech that fit with his conception of democracy. We should protect speech not to promote the liberty of the individual over the interests of the majority. We should protect speech because doing so promotes the collective interest — in other words, the interests of us all.

Although Holmes was in the minority, the power of his words and the force of his personality gave his opinion an authority beyond the usual judicial dissent. Civil libertarians soon embraced it as an article of faith, and ultimately the rest of the country did, too.

That didn’t happen overnight — the second Red Scare and McCarthyism were still to come. And Holmes was not the only person responsible for the development; Brandeis wrote several eloquent opinions defending free speech, and the contributions of lawyers and scholars such as Chafee were invaluable. But it was the figure of Holmes, the old soldier and enlightened aristocrat, who gave the movement its legitimacy and inspiration. And by the late 1960s, his tribute to “free trade in ideas,” along with his insistence that speech can be punished only if it poses a “clear and present danger,” had become not only cultural catchphrases but the law of the land.

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