But after stewing for a few days, Hand decided to try again, and wrote to Holmes to rejoin the fight:
I gave up rather more easily than I now feel disposed to about Tolerance on Wednesday. Here I take my stand. Opinions are at best provisional hypotheses, incompletely tested. The more they are tested, after the tests are well scrutinized, the more assurance we may assume, but they are never absolutes. So we must be tolerant of opposite opinions or varying opinions by the very fact of our incredulity of our own. . . .
You say that I strike at the sacred right to kill the other fellow. . . . Not at all, kill him for the love of Christ and in the name of God, but always realize he may be the saint and you the devil . . . and what you may die for, some smart chap like Laski may write a book and prove is all nonsense.9
Holmes replied cordially, “Rarely does a letter hit me so exactly where I live as yours, and unless you are spoiling for a fight I agree with it throughout,” and closed by saying, “I enjoyed our meeting as much as you possibly could have and should have tried to prolong it to Boston but that I feared my wife would worry.”10
But in fact he did not, at least not yet, buy Hand’s argument that freedom of speech had a greater claim than any other rights; “free speech stands no differently than freedom of vaccination,” he wrote to Hand. It would only be after some steady effort by Hand and other legal thinkers, and some more visceral personal encounters with the evils of intolerance for unpopular views, that Holmes would make the cause his own, and in so doing change forever the way the courts, and Americans, thought about free speech.
THAT SUMMER HAROLD Laski and his wife rented a cottage on the water at Rockport at the tip of Cape Ann, about fifteen miles from Beverly Farms. He had met Holmes two summers before when Frankfurter brought him to lunch, and their friendship had blossomed in a blizzard of correspondence; by the end of the year they had exchanged forty letters, and continued to do so at a scarcely undiminished rate over the following two decades. In Laski, Holmes had found his equal as a correspondent: Laski replied as quickly as Holmes, and filled his letters with a dazzling array of allusions to literature, political philosophy, church history, and earnest assurances of his affection and friendship.
He laid it on thick enough at the start that it put Holmes a bit on guard: when their correspondence was published in the 1950s Learned Hand said he was “glad to see that O.W.H. kept his fond disciple at a greater distance than I had feared; and was vaguely aware of the net that was being thrown for him.” A few months after their initial meeting, Holmes wrote to Laski, “The sinister thought has arisen in my mind whether you young fellows were ironically trying how much the old man could stand in the way of flattering things.” But he quickly added, “I hardly need say that I believe in and reciprocate the affection that I get from men like you and Frankfurter too sincerely to have any doubt.”11
Laski, his wife, and daughter, in 1918
Laski was just twenty-one and teaching at McGill University when Frankfurter had met him in the spring of 1915, and was so impressed he immediately arranged introductions that led to his becoming a regular writer for the New Republic and, the following year, an instructor in medieval history at Harvard.12
He was short, Jewish, leftist, and never let the truth get in the way of a good story, of which he had a seemingly inexhaustible supply. As an undergraduate at Oxford, fired with the cause of women’s suffrage, he had briefly flirted with radical extremism, planting a gasoline bomb in the men’s room of a railway station in a village in Surrey. The device detonated but failed to fully explode, doing minimal damage. Laski decamped to Paris for a few days, earning back the money he had borrowed for his getaway by giving tours of the city to visiting Americans, until the police lost interest in the “Oxted Station Outrage” and he quietly slipped back to Oxford. After that he confined his political agitation to words alone.13
When the Holmes-Laski letters were published they also confirmed to the world what all of his friends knew: that Laski was full of charm, brilliance, and fabulations. His stories were always fascinating, involving famous people or astounding coincidences: finding a set of astonishingly rare books inside a locked seventeenth-century desk that he picked up for three pounds at an antique shop; beating the American champion at tennis; being arrested in Manchester, England, when he was mistaken for a notorious wanted jewel thief; meeting the British prime minister Lloyd George, who at the end of a two-hour-long intimate dinner asked, “You don’t like me, Laski?”14
A later colleague at the London School of Economics, Edward Shils, described Laski’s “unsteady relations with the truth whenever he told about some experiences of his own.”
His very recounting of any experience that he said he had was immediately discounted. No one ever said: “Harold told me . . .” with the expectation that the retelling of the story told by Laski would be taken at its face value. It was known that, despite his soi-disant Marxist egalitarianism, one of Laski’s greatest pleasures was to be in the company of the great and the mighty and that his very greatest pleasure was to say that he had been in their company. . . . His irrepressible need to elaborate and to fabricate came to be accepted by everyone who had any dealings with him. . . .
The creation of these tales was not regarded as a vice; Laski was never called a liar. It was regarded rather as a foible.15
Charlie Curtis, who was a student at Harvard Law School at the time Laski arrived in Cambridge, recalled that “it was not until the morning after an evening with Laski that I used to wonder whether my belief had not been keeping pace with my enjoyment.” The English social reformer Beatrice Webb, who also heard many of Laski’s accounts of intimate talks with prime ministers and other famous people, observed in her diary, “He is never malicious or mischievous, but the tales he tells, if they are not all true, are vivid anticipations of what might have happened.”16
Holmes was not completely taken in by all of Laski’s stories, either. “I hope some day in a flush of conscience you will confess to faking a little—pour épater les bourgeois,” he once wrote to him. Another time Holmes caught him out boasting in a newspaper interview of his private conversations with President Wilson. “I did not know that you ever were in contact with him,” Holmes wrote. “When and what was it?” Laski replied that the reporter must have mixed him up with someone else.17
Yet if it was not always easy to separate truth from fiction in his stories that was at least in part because extraordinary things really did happen to him, and he really did know the great and mighty wherever he went. One of his more astounding real-world experiences was to have been selected as a juror in the libel action brought by Sir Michael O’Dwyer against an Indian jurist who had accused him in print of instigating the 1919 Amritsar massacre, in which British troops fired on and killed hundreds of peaceful protesters: Laski was the lone holdout against a verdict for the plaintiff.18
Leonard Woolf, one of the British intellectuals active in advising the Labour Party, recalled Laski’s astonishing performance—“one of the most brilliant intellectual pyrotechnical displays I have ever listened to”—when Gandhi met with a group of Labour people in London a few years later to discuss future action toward Indian independence. After each of the participants had said his piece, Gandhi asked Laski if he would summarize the discussion.
Harold then stood up in front of the fireplace and gave the most lucid, faultless summary of the complicated, diverse expositions of ten or fifteen people to which he had been listening in the previous hour and a half. He spoke for about 20 minutes; he gave a perfect sketch of the pattern into which the various statements and opinions logically composed themselves; he never hesitated for a word or a thought, and, as far as I could see, he never missed a point. There was a kind of beauty in his exposition, a flawless certainty and simplicity which one feels in some works of art. Harold’s mind, when properly used, was a wonderful intellectual instrument.19
As Shils concluded about his colleague, “Despite the mists of a
mbiguity and embroidering, there was much that was real in both his fame and his learning. . . . His capacity to arouse affection and to show affection was the most visible and least fabricated thing about him.”20
The affection between Holmes and Laski was certainly genuine, on both sides. Holmes described his new young friend to Pollock as “one of the very most learned men I ever saw of any age,” as well as “an extraordinarily agreeable chap.” If any of his young friends ever filled the role of surrogate son, Laski came the closest. Holmes called him “dear lad” or “my son” and Laski—whose own father had broken off all connections when he defied his parents by marrying, at age eighteen, a non-Jewish woman eight years his senior—was more than happy to play the part.21
“Here we are at last—and I hope before long to see you,” Holmes wrote to Laski in Rockport a few days after arriving at Beverly Farms for the summer of 1918. A few days later he wrote to confirm their first planned meeting, “I am dying to talk with you.” They saw each other for a number of long talks; when Holmes got tied up for several days straightening out his bank statement (“my Heavenly Father never meant me to do sums”), he wrote, “Just a word to say how I miss you.” At the end of August Laski invited the Holmeses to have dinner with him and his wife at their cottage, and afterward wrote to say how much it moved him “that you both have broken bread with us.”22
Laski was juggling an incredible number of projects. In addition to teaching and writing for the New Republic, he was contributing scholarly articles to the Harvard Law Review on everything from the liability of charitable corporations to the effect of orders-in-council on Magna Carta, while also running its book review section, helping to fill in while many of the students had enlisted for the war—the only time in the history of the Review that one of its editors was not registered at the Law School.23
Laski at that time threaded a careful line between liberalism and communism, but one of the key ideas that animated him at Harvard was enthusiasm for what he called “pluralism”—the idea that government was just one of a number of institutions that contributed to the public good, and that the freedom of people to organize competing associations such as labor unions, churches, and civic associations was essential to progress and democracy. His belief in freedom of speech flowed directly from that. A divergence of views over even the most basic questions allowed new ideas to develop and be tested; but diversity was also an inevitable consequence of liberty itself: in a society where people did not slavishly owe obedience to the state and to conformity, differences of opinion were natural, and should be welcomed.24
Holmes had shown Laski his correspondence with Hand, and that summer, as he cultivated his deepening friendship with Holmes, Laski used the opening Hand had given him to keep working on Holmes on the issue, employing a combination of argument and flattery. Holmes responded to Laski’s sallies by sticking to his insistence that tolerance is only a product of indifference to the outcome: on matters where we care enough, Holmes insisted, “we should deal with the act of speech as we deal with any other overt act that we don’t like.” But he added, “To be continued on Friday.”25
Holmes’s self-avowed sense that he had to spend at least part of his summer reading “for improvement” gave Laski another opportunity: he sent Holmes a list of titles calculated to advance the case for civil liberty—Lord Acton’s The History of Freedom, Thorsten Veblen’s The Nature of Peace—and in early August sent him a weighty French legal tome, the second volume of Science et technique en droit privé positif.26
That was probably a mistake. The work was devoted to the very proposition about the law that Holmes had always most scorned, the idea that there was a “natural law” that underpinned all of human law, in particular man’s endowment with certain fundamental rights—as the Declaration of Independence had so notably declared.
In “a kind of a rage,” as Holmes later described his mood, he sat down and wrote a short essay distilling his rejection of these views. He showed it to Laski that night he and Fanny came to dinner. Laski flatteringly declared it second only to “The Soldier’s Faith” among the “things of yours that, at first sight, have moved me so much,” and claimed it for the Harvard Law Review.27
“The jurists who believe in natural law seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by them and their neighbors as something that must be accepted by all men everywhere,” Holmes wrote in his article. “The most fundamental of the supposed preëxisting rights—the right to life—is sacrificed without a scruple not only in war, but whenever the interest of society, that is, of the predominant power in the community, is thought to demand it.”28
And yet there was a small crack in his argument when he acknowledged at the start the point that would grow to become his clarion call in defense of freedom of speech—if not as a right, then as a necessity. “Certitude is not the test of certainty,” he wrote. “We have been cock-sure of many things that were not so.”29
It was exactly the point Hand had tried to make to him on the train, and then reiterated in what Holmes described to Laski as Hand’s “mighty good letter” afterward: that our very skepticism about our own certainty ought to counsel tolerance in repressing the beliefs of others.
And then, Holmes wrote to Einstein toward the end of the summer, he had said “To hell with improvement!” and spent the rest of his vacation reading three books of Homer’s Odyssey (“with more pleasure than formerly”), Hamlet (“a bill filler . . . they all talk Shakespeare”), and Experiences of an Irish R.M., the humorous tales of a hapless English resident magistrate constantly outwitted by the locals in his attempts to enforce the law in the Irish countryside.30
THAT FALL OF 1918 the flu pandemic that would claim three times as many lives as the entire four years of fighting in the war now at last approaching its end broke out in an army camp near Boston, and spread quickly down the East Coast. In Washington, public buildings were shut, and the Supreme Court delayed the opening of its term so that lawyers from around the country would not have to travel to “a crowded and infected spot,” Holmes wrote to Pollock.31
Although the Masses case had ended with the ruling of the court of appeals that threw out Hand’s injunction, several other challenges to the Espionage Act’s restrictions on speech were on the Supreme Court’s docket for the October 1918 term. One of the very first cases to come up when the Court began hearing arguments again in November was Baltzer v. U.S., an appeal of the convictions of twenty-seven South Dakota farmers who had made the mistake of protesting to the governor what they saw as an unfair draft quota assigned to their community.
The farmers, all socialists of German descent who opposed the war, complained that their county had been singled out in retaliation for their political views and ethnic heritage. In fact, the quotas had been arrived at by deducting the number of men who had already enlisted from each county; and their area, which also contained a large number of Mennonites who opposed military service on religious grounds, had relatively few volunteers, so received a correspondingly high quota. After sending a petition to the governor against what they saw as an injustice, all had been promptly arrested, tried in federal court, and sentenced to one to five years in prison for obstructing the draft.
Several other pending Espionage Act cases garnered considerably more attention. In Schenck v. U.S. the government had gone after Socialist Party officials who had much more openly denounced the war and the draft, mailing leaflets to draftees urging them to resist conscription. In Frohwerk v. U.S. the editors of a German-language newspaper in Missouri had been convicted for printing articles that, among other things, denounced sending American soldiers to France as “outright murder” and asserted that Germany was conducting a defensive war against the aggressions of England.
The most prominent of the cases was an appeal of the conviction of Eugene V. Debs, the Socialist Party’s leader and standard bearer. Debs had unsuccessfully run for president on the Socialist Par
ty ticket four times, never garnering more than 6 percent of the vote, but he was no joke, to either his supporters or his enemies. A fiery orator and veteran union organizer, he had never wavered in his denunciation of the war as a fight between the capitalist powers in which the working class had no stake. In a speech in Canton, Ohio, on June 16, 1918, he thundered that the ruling classes “have always taught you that it is your patriotic duty to go to war and to have yourselves slaughtered at a command, but in all of the history of the world you, the people, never had a voice in declaring war.”
Debs, the master orator, made his own closing argument at his trial, speaking for two hours without notes, denying nothing but likening himself to past American heroes who dared to challenge the “respectable majority of their day.” This time his oratory fell on deaf ears, and he was convicted of inciting disloyalty to the military and obstructing the draft.32
Eager to have a definitive ruling, the attorney general sought an expedited review of all of the cases, which the Supreme Court granted. Baltzer was first on the docket. In early December, McKenna circulated his draft opinion for the majority, affirming the convictions of the farmers.
Holmes’s decisions up until then in cases involving freedom of speech had not been particularly sympathetic to the idea that speech deserved any special protection from government control. In Massachusetts, he had upheld statutes that banned public speaking and preaching on the Boston Common and that barred police officers from engaging in political activity.33 He had rejected the argument that in accurately reporting accusations of corrupt dealings by public officials or unethical conduct by a lawyer, newspapers were shielded from libel suits by those named in their stories.34
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