The Liberation of Free Speech

Our current idea of the right to free speech is not what it was 200 years ago.Most Americans believe their right to free speech under the First Amendment is inalienable. That hasn’t always been so and may not be totally true even today.

In his book, “The Great Dissent,” law professor Thomas Healy tells the story of how our contemporary sense of free speech grew out of a 1919 dissenting Supreme Court decision involving five Russians whom we would regard today as rabble-rousing illegal aliens.

Enter 77-year-old Supreme Court Justice Oliver Wendell Holmes, a New England blueblood, thrice injured Civil War veteran and skeptic of moral absolutes, including the right of free speech.

Healy’s engrossing book traces Holmes’ conversion from a free speech conservative to Great Dissenter, tutored by a brilliant set of young lawyers, including fellow Justice Louis Brandeis, future Justice Felix Frankfurter and contemporary Judge Learned Hand. His personal evolution confirmed the thesis of his own influential Common Law, where he argued law should transcend precedent and look to facts and circumstances so the law aids, not impedes, the progress of people.

Healy notes the First Amendment’s free speech clause drew little commentary when the Bill of Rights was debated and ratified. More attention centered on the importance of a free press.

The legal presumption at the time, Healy says, paralleled the British construction of free speech — you were free to speak your mind without censorship, but would be liable civilly and criminally for what you said. Liability stretched beyond libel and slander to include criticism of the government.

It didn’t take long for that view to become codified. The Federalists, trying to dampen dissent by Jeffersonians in the wake of the French Revolution, enacted the Alien and Sedition Acts in 1789. While the laws were allowed to expire and slip into history, the legal conception of free speech on which they were based lived on.

During the Civil War, President Lincoln took pains not to invoke the prevalent theory of free speech and allowed more freedom of expression than many of his supporters and generals favored in the emotion-charged battle of brothers.

It wasn’t until World War I and the convergence of antipathies for Germans, Bolsheviks, labor leaders and Jews produced the ferment that pointed the way for our contemporary view of free speech. And it wasn’t until the 1940s that judges began to accord more space for free speech without penalty.

Holmes, ironically, became the fulcrum for the slow motion change when he wrote a majority opinion confirming a conviction under the Espionage Act, intended to blunt speech by German sympathizers and opposition to the military draft. Holmes casually mentioned in the opinion the phrase “clear and present danger,” which ultimately would become the bright-line test in free speech prosecutions.

The opinion was one of four handed down by the court, all written by Holmes, including one upholding the conviction of labor leader Eugene Debs, who gave a speech raising doubts about the draft. Progressive forces in the nation were outraged, but a handful of younger men who were close friends of Holmes saw the phrase as a once-in-a-lifetime opening.

As Healy’s book traces, their influence began to open the elder justice’s eyes. And when one of them, Harold Laski, became embroiled in a controversy at Harvard University for supporting a Boston police strike, Holmes saw all too clearly how free speech could be put on chill.

The now-famous dissent written by Holmes in Abrams vs the United States was the first in a series of dissents by he and Brandeis involving all sorts of radicals. They argued for a wide berth for expression in the “free market of ideas” where competition of views will expose the greater truth. For them, free speech only should be curtailed when there is a  ”clear and present” danger posed by the words that are uttered, a test that puts the chill on prosecutors, not speakers.

What is sobering about this belated blooming of free speech is its connection to worries over mixed allegiance. Federalists worried about French Revolution sympathizers. A war-time Congress worried about opposition to the draft by Americans who questioned U.S. involvement in the war.

Limitations on free speech were widely accepted because, to many, some speech was unwelcome. And for true believers, some speech was and simply never could be true.

It takes a very different kind of people and political culture to embrace disagreement, to defend the right of someone to say things you find detestable. And gradually, as Healy recounts, that’s how our view of free speech evolved, with a few false steps during the Red Baiting period, blacklisting of writers and directors and internment of Japanese-Americans.

Now we face the ugly faces of hate speech, cyber-bullying and intentional disinformation. And, thanks to someone charged with violating the Espionage Act, we have learned a lot about government spying on our phone calls, emails and social media sites.

The battle for free speech isn’t over and may never be. It will wage on as long as people realize free speech is the key to most of our other cherished liberties.