Oliver Wendell Holmes, the Abrams Case, and the Origins of the Harmless Speech Tradition

26 Pages Posted: 12 May 2020 Last revised: 13 May 2020

See all articles by Frederick Schauer

Frederick Schauer

University of Virginia School of Law

Date Written: May 1, 2020

Abstract

Oliver Wendell Holmes’s dissenting opinion in Abrams v. United States is rightly celebrated for what Holmes said in his concluding paragraph about truth and the competition of the market. Earlier in his opinion, however, Holmes had described Abrams as an “unknown man” whose “silly leaflet” and “puny anonymities” could not possibly have caused any harm. But those characterizations were mistaken, and Holmes must have known they were mistaken. Abrams and his co-defendants were in fact significantly connected the many of the most violent radical anarchists, socialists, and union leaders during one of the most violent periods in American history. Holmes was correct in saying that Abrams and his activities should have been protected by the First Amendment, and it is also clear that the reactions against the radical activities of the time were tragic overreactions. Abrams should have been protected, however, not because he was harmless, but despite the harm that he and others like him did and might have caused. In this article, written for a symposium held at the Columbia Law School commemorating the one hundredth of the Abrams opinion, and to be published with the other symposium papers in the Seton Hall Law Review, I provide historical support for the foregoing claim, and suggest that one unfortunate consequence of Holmes’s opinion was in launching the “harmless speech” tradition that continues to dominate free speech rhetoric, doctrine, and theory.

Suggested Citation

Schauer, Frederick, Oliver Wendell Holmes, the Abrams Case, and the Origins of the Harmless Speech Tradition (May 1, 2020). Seton Hall Law Review, Vol. 51, No. 1, 2021, Virginia Public Law and Legal Theory Research Paper No. 2020-42, Available at SSRN: https://ssrn.com/abstract=3599406

Frederick Schauer (Contact Author)

University of Virginia School of Law ( email )

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