Oliver Wendell Holmes and Free Speech

Oliver Wendell Holmes JrOne hundred and twenty-two years ago, Mississippi John Hurt was born. But I gave the day to him last year. And just a couple weeks ago, I wrote, A Little Mississippi John Hurt. It isn’t just his music that I love, although that would be more than enough. He also has a great life story. But I can’t write yet another article about him. So instead, let’s talk about a man who I don’t have such nice things to say about. Oliver Wendell Holmes Jr was born on this day in 1841.

Most people have an overall good impression of Holmes. He was known for his wit, and he wasn’t on the Supreme Court until after Plessy v Ferguson, so there was no opportunity for him to completely embarrass himself over that issue. But he did write the opinion in Schenck v United States. This is where he wrote his most famous sentence that the First Amendment was not absolute allowing for one “falsely shouting fire in a theater and causing a panic.” I think that logic appeals to a lot of people. But it is pernicious.

I remember some time ago, a friend of mine told me about being in a crowed theater when the fire alarms went off. Everyone looked around and saw that there were no flames and no smoke. So they ignored it until the management got the alarm turned off. Even Holmes’ analogy is wrong. People don’t get panicked just because of an alarm. But I understand that this was not what Holmes meant. So let’s talk about that.

What exactly was Charles Schenck doing that Holmes thought was akin to shouting fire in a theater? He was sending out leaflets to men facing conscription for World War I. In fact, it argued that the daft was “involuntary servitude,” which had been outlawed by the Thirteenth Amendment. I think that is entirely a correct reading the amendment and I’ve never understood how it is that conscription is constitutional other than the fact that powerful people want it to be so. Regardless, if Schenck was doing anything, he was shouting fire in a theater that was on fire.

The overall decision, which was unanimous, found that the First Amendment did not extend to encouraging insubordination. This sounds so much like the Animal Farm ending, “All animals are equal, but some animals are more equal than others.” The Supreme Court decided that people could say anything they wanted, as long as the power elite didn’t mind. And what that means is that we only have freedom of speech as long as our leaders decide we do. And that means we have no freedom of speech.

In his later years, Holmes tried to finesse his opinion. He took every opportunity to say that the opinion in Schenck was razor thin. I think this indicates that he knew he had blown it. But by and large, the other justices did not see the ruling as problematic. What this shows is that even honest and good men like Holmes crumble to the desires of their class under the smallest of pressures. The United States was only in World War I for a year and a half. The biggest thing that came out of the war was that the United States repudiated one of its most cherished founding principles.

Happy birthday Oliver Wendell Holmes Jr?

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About Frank Moraes

Frank Moraes is a freelance writer and editor online and in print. He is educated as a scientist with a PhD in Atmospheric Physics. He has worked in climate science, remote sensing, throughout the computer industry, and as a college physics instructor. Find out more at About Frank Moraes.

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