The Great Dissent arrives just when its insight is needed. To borrow from the book’s subject, Supreme Court Justice Oliver Wendell Holmes Jr., it might even be a case of proximity and immediacy.
The book examines the jurisprudence of Holmes, who in 1919 began to reshape the law on free speech and First Amendment values in what author Thomas Healy considers the most important dissent in American law.
A Harvard law professor with roots back to the nation’s founding, Holmes initially came to free-speech issues with a fair amount of hostility toward the speakers the government was prosecuting.
In this period, the Supreme Court wrestled with several cases on this topic, and the outcomes were all the same: convictions upheld. The book centers on two cases from 1919. In Schenck v. United States, Holmes wrote the majority opinion, upholding the convictions of socialists who had created and distributed a leaflet criticizing the draft. Less than a year later, Holmes dissented in the almost identical case of Abrams v. United States, arguing that free-speech rights outweighed the vague potential for their words to cause harm.
What led Holmes to make such an about-face becomes the focus of the book.
Healy has made ample use of Holmes’ extensive correspondence with other intellectual and legal luminaries of his day to try to figure out how the justice’s outlook changed so markedly in less than a year. The answer has to do with Holmes’ wide reading and his encounters with the likes of Learned Hand, an influential federal judge; fellow Supreme Court Justice Louis Brandeis, who was to join in Holmes’ Abrams dissent; and future justice Felix Frankfurter.
It’s impossible to know for sure, but Healy seems right in thinking that these men influenced Holmes and inspired his personal transformation, which Healy believes led to a transformation of First Amendment law. That second transformation, however, took decades to arrive. Holmes (and Brandeis) remained in the minority, dissenting in free-speech cases in the years after Schenck and Abrams. The court vacillated on these issues until a 1969 case, Brandenburg v. Ohio.
The tentacles of Holmes’ views on free speech have touched just about every First Amendment decision in the past 90 years.
As courts confront new challenges, particularly for free speech and the free flow of information, they will continue to look to Holmes for guidance. And Holmes is still providing an applicable rationale for relying on the marketplace of ideas.