The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., and the Story Behind Abrams v. United States
39 J. Sup. Ct. History, March 2014
63 Pages Posted: 26 Jan 2014
Date Written: August 1, 2013
It is one of the great legal and intellectual mysteries of the twentieth century: Why did Oliver Wendell Holmes change his mind about the value of free speech in the turbulent months following World War I and write his landmark dissent in Abrams v. United States? In this Article, I provide the most comprehensive answer yet to this question. Relying upon extensive archival research – including a number of previously unpublished letters – I argue that Holmes’s dramatic transformation was the result of two related, but distinct developments. First, during 1918 and 1919, Holmes was the target of an intense behind-the-scenes lobbying effort carried out by a group of young progressives that included Harold Laski, Felix Frankfurter, Learned Hand, and the editors of the New Republic. Holmes cared deeply for these young men, viewing some of them like sons, and was thus surprisingly susceptible to their influence. Second, at the same time these men were lobbying Holmes to adopt a more expansive view of free speech, two of them – Laski and Frankfurter – came under attack for their own radical views. Holmes learned about their difficulties in the spring of 1919 and wrote several letters on their behalf. Then, when trouble flared up again that fall, Laski and Frankfurter asked Holmes if he would write an article on tolerance for the Atlantic Monthly. Holmes declined, citing his heavy workload, but several days later he wrote his dissent in Abrams “as if possessed,” he explained to Frankfurter. Thus, I argue, Holmes’s dissent can be seen as more than just an abstract defense of free speech. From the perspective of his young friends, it was a defense of them.
Keywords: Oliver Wendell Holmes, free speech, First Amendment, Abrams v. United States, marketplace of ideas, Felix Frankfurter, Learned Hand, Harold Laski, clear and present danger
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