Tuesday, October 1, 2013

"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"

He had no problem with eugenics.  He made that plain in Buck v. Bell when he explained that really, it's not just OK but basically desirable that we forcibly sterilize "defective persons" for the good of society.  Making the point, as he so often made his points, forcefully.
Three generations of imbeciles are enough.
He had no trouble finding, in Fox v. Washington, that there was no constitutional problem with prosecuting Fox for advocating nude swimming.
If the statute should be construed as going no farther than it is necessary to go in order to bring the defendant within it, there is no trouble with it.
And during a chance encounter on a train with Judge Learned Hand, when the judge tried to convince him that the Constitution demanded and good sense required toleration of dissent, he rejected the very notion.
As a believer in society's right to impose its will on the individual, he thought persecution of dissenters made perfect sense.  And as a former soldier who had taken up arms against his fellow countrymen, he was not afraid to follow that principle to what he thought was its logical, if shocking, conclusion. "You strike at the sacred right to kill the other fellow when he disagrees."
After all,
He disdained all constitutional rights.
Those last two inset quotes are from Thomas Healy describing Oliver Wendell Holmes, he of the quite spectacular moustache, in his book The Great Dissent: How Oliver Wendell Holmes Changed His Mind - and Changed the History of Free Speech in America. 

That may not be the Holmes you recall, the Holmes who wrote powerfully about free speech, who defended the rights of the workingman against a repressive view of constitutional liberty, who was an iconoclastic champion of progressive legislation.  But it is indeed the same Holmes.   And how he got from Point A (killing the fellow who disagrees) to Point B (the great advocate of free speech), well, that's the story Healy tells.

It begins with that conversation he had with Learned Hand, continues through the lobbying of Harold Laski, and Felix Frankfurter (before his time on the Supreme Court), and Zechariah Chafee.  And by Louis Brandeis (during his time on the Court) though Brandeis probably deserves more of a place than Healy gives him.

Ultimately, Healy suggests, it wasn't the lobbying so much that turned Holmes as the discovery of consequence.  Back in 1881, in The Common Law, Holmes had written
The life of the law has not been logic; it has been experience.
And so it proved for him.  

What seems, finally, to have made the change was not any of the arguments from Hand or Laski or Frankfurter or Chafee or Brandeis.  It wasn't an epiphany about the abstract importance of constitutional rights or the values of individual liberty against the interests of society.  (Buck v. Bell, after all, was 1927, 8 years after Holmes had his transformation from opponent of free speech to advocate.)  What changed Holmes was that he saw the harm that punishment for speech did to his friend (virtually his adopted son, Healy suggests, though he doesn't say that) Laski.
For what had been merely an abstract question for Holmes over the apst year was, suddenly, concrete and personal.  The face of free speech was no longer Eugene Debs, the dangerous socialist agitator.  It was his good friend Harold Laski, and Holmes's views shifted accordingly -- and dramatically.  He still did not have a theory of free speech that satisfied him, but he now delared himself willing to die for it, just as he had been been willing to die for the cause of the Union six decades earlier.
And so it came to pass that in 1919, just months after enthusiastically upholding the criminalization of speech that merely criticized, Holmes dissented.  The case was Abrams v. United States, and this time Holmes dissented.  He denied any change in attitude or position. Perhaps he even believed his denial.  But it was bullshit.  He completely reversed himself.
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. 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. 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.
The words ring.  And as Healy says, they led to an upheaval in First Amendment law.  (Though it's a constant fight, still, as all constitutional rights are always in jeopardy.)

I need to shift gears for a minute.  As I said, the words ring.  The man could write.  But they're also, I think, wrong.  Not wrong insofar as they assert that the Constitution protects free speech.  Wrong, rather, insofar as they claim that the idea is that "the best test of truth is the power of the thought to get itself accepted in the competition of the market" or that such is "the theory of our Constitution."  I don't buy it.  

It's Mark Twain or maybe Winston Churchill or perhaps C.H. Spurgeon or someone else or all of them who said that "a lie gets halfway around the world before truth has time to put its pants [or britches or boots or whatever] on."  The idea that truth wins out because it's just got some basic force, seems to me self-evidently false.  And, in any event, how would we know?

The virtue of free speech, and the Constitutional need for it, is that only if we can speak freely can we truly think freely. That's a virtue in itself.  And in a republican system where ideas are to be debated and voted on, there must be room for that debate.  Not because the result will be right, but because it's the only way a public decision can be made.  The people decide, even if they decide stupidly.  But what they can't decide is to do away with the right to fuss and carry on.   That's "the theory of our Constitution."

OK, that's me, not Holmes.  For Holmes?  Read Healy's book.  He's got a great story to tell, and if he's more infatuated with Holmes than I am?  Hell, he wrote a book about the guy.  And it's a dandy book.

Like Evan Mandery in A Wild Justice, Healy provides legal history and analysis through storytelling and anecdote.  It's fun.  It's interesting.  And it's important.

My thanks to Metropolitan Books for sending me a copy to review.  

1 comment:

  1. Long time lurker, first time commentor. I'm a big fan of your blog Mr Gamso.

    I completely agree with you about truth winning out being self-evidently false. I hear the phrase "marketplace of ideas" used often; but am concious that markets are for setting prices, a concept that to me seems somewhat incongruous with the "truthiness" (Colbert) or otherwise of an idea.