Oliver Wendell Holmes

by Stephen Budiansky

  Eugene V. Debs speaking in Canton, Ohio, 1918

  The federal courts for their part had had little to say on the First Amendment. Having ruled in 1833 that the Bill of Rights does not apply to the states, the Supreme Court had heard few cases touching on freedom of speech. One that did reach the Supreme Court, in 1907, was Patterson v. Colorado. In his unanimous opinion for the Court, Holmes followed the same line of reasoning he had applied in his Massachusetts cases, relying largely on a key 1825 decision by his eminent predecessor on the Massachusetts Supreme Judicial Court, Chief Justice Isaac Parker.35

  Parker, in a carefully argued analysis of whether the constitutional protections of freedom of the press adopted by the states and the federal government at the nation’s founding merely embodied the existing English common law, or were meant to establish a new, more expansive right, Parker came down squarely on the side of the first proposition. The common law rule, which Blackstone had set forth in his influential commentaries, was that the government could not impose a prior restraint on speech—such as requiring publishers to submit a work for approval in advance—but that anyone who did publish could still be held to account for his words after the fact.

  Moreover, Parker wrote, the constitutional provisions protected “the liberty of the press, not its licentiousness. . . . The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse.” It could even be an “abuse” to publish true statements, if they threatened a breach of the peace or reckless damage to reputation. If “a minister of the gospel should be guilty of gross immoralities,” Parker noted, a member of his parish could properly bring a complaint to the church authorities without risking a libel action. But a “promiscuous promulgation of the same facts” through publication would be “the strongest evidence of malice,” fully punishable by the law.36

  In Patterson, Holmes wrote that a fine levied against a Denver newspaper for criticizing a decision of the state’s supreme court did not raise a First Amendment issue, since the Bill of Rights did not apply to the states. But he did not stop there. In almost the exact language of Blackstone and Parker, Holmes went on to assert that even if the amendment did apply, it had been adopted only “to prevent all such previous restraints upon publications as had been practiced by other governments, and . . . not to prevent subsequent punishment of such as may be deemed contrary to the public welfare.” Two years later, upholding a libel judgment against a Chicago newspaper, Holmes had quoted the words of one of England’s leading authorities on the common law, the eighteenth-century jurist Lord Mansfield: “Whenever a man publishes, he publishes at his peril.”37

  Baltzer was by far the most aggressive of the government’s Espionage Act prosecutions, since it targeted exactly the situation Parker had suggested as an example of protected speech. The farmers had not published or publicly circulated their petition: no one had even seen it but the governor and a few of his aides. Among the First Amendment’s explicit guarantees was the right of the people “to petition the Government for a redress of grievances.” All of the justices had indicated that they were willing to uphold the power of the government to prevent action that harmed the military in wartime, but if the convictions in Baltzer were affirmed, that would imply a far greater restriction of fundamental rights of citizens. Brandeis was troubled enough by the precedent that would be set that he went to see Holmes and suggested he write a dissent.38

  Holmes’s undelivered dissent in Baltzer

  What ensued was a remarkable instance of back-door politicking in the Court. Holmes quickly fired off a dissenting opinion that, while dismissing the petition of the farmers as a “foolish exercise of a right”—and not retreating from his position that “freedom of speech is not abridged unconstitutionally in those cases of subsequent punishment with which this court has had to deal from time to time”—showed that his blood had been stirred, and that Laski’s and Hand’s appeals had not been wholly in vain.

  “We have enjoyed so much freedom for so long that perhaps we are in danger of forgetting that the bill of rights which cost so much blood to establish is still worth fighting for,” Holmes wrote in his dissent. He saw nothing wrong with punishing real efforts to aid the enemy or obstruct the law. “But the emergency would have to be very great before I could be persuaded that an appeal for political action through legal channels, addressed to those supposed to have power to take such action was an act that the Constitution did not protect as well after as before.”39

  “I gladly join you,” Brandeis replied immediately. Somewhat surprisingly, Chief Justice White did too: “Please state me as joining EDW.” Pitney did not, writing on his return to Holmes:

  I submit, with great respect, that this reads as if it proceeded from the heart rather than the head—Pitney

  P.S.—a good fault perhaps, but still a fault40

  Less than a week later, on December 16, 1918, the government abruptly withdrew the case, admitting that the convictions had been in error. The justices’ deliberations were strictly confidential, yet the solicitor general wrote an internal memorandum indicating that he had received warning that the government might lose its case in the Supreme Court. What seems likely is that someone tipped him off, and the most likely culprit is Brandeis. Whether the solicitor general simply feared that a powerful dissent by Holmes, joined by the chief justice, would be an embarrassment, or whether Brandeis succeeded in leaving the impression that Holmes’s dissent might actually garner a majority, the Justice Department concluded it would be wiser to drop the case altogether.41

  Holmes had no similar doubts about the guilt of Debs and the others, however. In February 1919, White assigned three remaining Espionage Act cases to Holmes to write, and in early March he announced the decisions for a unanimous Court, upholding all of the convictions. But he told several friends he thought it was foolish for the cases to have been brought at all. He wrote to Baroness Moncheur,

  I had a disagreeable task in writing a decision against Debs, the agitator, for obstructing recruiting by a speech found by the jury to have been made with that intent. There was no doubt in my mind about the law but I wondered that the Government should have pressed the case to hearing—as it enables knaves, fools and the ignorant to say that he really was condemned as a dangerous agitator.42

  Yet even in upholding the government’s position, Holmes had in fact taken another measured step back from the views he had expressed in Patterson and in the Massachusetts cases. He had clearly been wrestling with the question Hand had raised in Masses about where to draw the line between protected and dangerous speech: he wrote Hand in late February that he had finally read his opinion and that while he would not necessarily have arrived at the same result, “I thought that few judges indeed could have put their view with such force or in such admirable form.”43

  In his opinion in Schenck, the case of the Socialist Party leaflets, he proposed a test of his own. He had been thinking by way of analogy to the law of attempted crimes. In two important cases he had decided in Massachusetts, Holmes had addressed the all-important question of intent. Like everything, it came down to a matter of degree. But “as the aim of the law is not to punish sins, but is to prevent certain external results, the act done must come pretty near to accomplishing that result before the law will notice it,” he had ruled in affirming an attempted murder conviction in a case where a rat poison (“Rough on Rats”) had been placed in the intended victim’s moustache cup. He made the same point in overturning a conviction for attempted arson in the case of a man who bought combustible materials with the intention of burning down a building, but changed his mind and turned around when he was still a quarter of a mile away.44

  In Schenck he suggested the test of whether speech advocating illegal conduct was punishable was, similarly, whether it came close enough to the act that it posed “a clear and present danger.” As with everything else, that depended on the circumstances: in wartime there was more justification for limiti
ng speech since the danger was proportionately greater. He illustrated the point with an analogy whose subsequent fame may have added more confusion than clarity: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”45

  Laski and Hand were unhappy with the decisions, but continued to cajole Holmes in the hope of bringing him around. “I read your three opinions with great care,” Laski wrote the justice; “and though I say it with deep regret they are very convincing.” Hand, trying one last time to get Holmes to see his point about looking at the words themselves rather than subjectively trying to gauge their implications, began his letter to Holmes, “I haven’t a doubt that Debs was guilty under any rule conceivably applicable,” which he almost surely did not believe. But Hand worried that a test that still relied on motive and intent was far too sweeping, and he said that the Espionage Act had “certainly terrorized some of the press whose voices were much needed.” He admitted defeat, however, on the direct-incitement test he had proposed in his Masses decision: “I bid a long farewell to my little toy ship which set out quite bravely in the shortest voyage ever made.”46

  The New Republic departed from its usual praise of Holmes with an article by a University of Chicago law professor, Ernst Freund, that took sharp issue with the reasoning in his decisions. “To be permitted to agitate at your own peril, subject to a jury’s guessing at motive, tendency and possible effect,” Freund wrote, “makes the right of free speech a precarious gift.” Holmes went so far as to draft a somewhat stung reply to the magazine’s editors, but thought better of it and did not send it, but did show it to Laski—who responded with tactful silence.47

  In part, that was because Laski was orchestrating some of the critical commentary himself. Few academic lawyers had much interest in the First Amendment at that time, but Chafee had been inspired to delve into free speech when he came across Hand’s Masses decision while searching for examples of injunctions for a course he was teaching on torts and equity. The scion of a wealthy Rhode Island family, Chafee was a specialist in business law, but Hand’s decision piqued his interest. Laski then urged him to start writing on the subject for the New Republic.48

  Chafee’s views on free speech reflected his patrician and old–New England feelings of the responsibilities of wealth: his sympathies, he said, were with his class, but to persecute those less well off for their differing views offended his sense of honor. “[I] want my side to fight fair,” he insisted.49

  Following the Espionage Act decisions, Chafee followed up with a lengthier article for the Harvard Law Review that also took issue with some of Holmes’s reasoning. Notably, the “fire in a theater” analogy, he observed, was shooting fish in a barrel: it was such an easy case that it offered little useful guidance to juries, which would still have far too much leeway to apply subjective notions about what constituted actual danger. “How about the man who gets up in a theater between the acts and informs the audience honestly but perhaps mistakenly that the fire exits are too few or locked?” he asked.50

  But Chafee sought to make the best of it, and thought that “clear and present danger” was a starting point that could achieve a much broader protection of free speech, despite its shortcomings. As Hand later told Chafee, “You have, I dare say, done well to take what has fallen from Heaven and insist that it is manna.”51 The events of the next few months would show that they were not mistaken in their hopes of continuing to move Holmes to a more encompassing view of the one right, they argued, that all other rights in a free society flowed from.

  WALKING IN ROCK Creek Park at the end of March, a few weeks after his decisions in Debs and Schenck were announced that spring of 1919, Holmes saw his first bloodroot flower of the season. “In spite of continuing anxieties I can enjoy nature now,” he wrote Baroness Moncheur. “I found myself doing so one day and said to myself How is this? And then I answered myself—why the Armistice.”52

  If he thought that, like the anxieties of the war, his recent controversial cases were behind him, the relief was short-lived. Holmes privately hoped the president would pardon Debs, and the “other poor devils with whom I have more sympathy.” But his opinions upholding their convictions brought the Court, and Holmes personally, in for a flood of hate mail and public attacks. “Just now I am receiving some singularly ignorant protests against a decision that I wrote sustaining a conviction of Debs, a labor agitator, for obstructing the recruiting service,” he wrote to Einstein. “They make me want to write a letter to ease my mind and shoot off my mouth; but of course I keep a judicial silence.”53

  In the early morning hours of April 30, 1919, a postal clerk in Manhattan named Charles Caplan was reading the newspaper on the subway on his way home from his late shift when his eye fell on an article about a bomb that had exploded at the home of ex-senator Thomas W. Hardwick on Peachtree Street in Atlanta. The bomb was in a parcel that had been sent through the mail; when Hardwick’s maid opened it, it blew off both her hands and seriously injured the senator’s wife. Enough of the packaging had survived, however, to provide a description of the parcel’s appearance—and Caplan realized with a start that it was identical to sixteen packages that were sitting at that moment in the parcel-post storage room in Harlem, where they had been held for insufficient postage. He got off the train at the next stop and immediately returned to the post office and notified his supervisor.

  By the end of the day, the bomb squad had dismantled all of the devices and confirmed that they were the same as the Atlanta bomb, filled with liquid dynamite and wrapped in a box labeled “Novelties” and stamped with the name of the Gimbel Brothers department store. Among the intended recipients were John D. Rockefeller, J. P. Morgan, Attorney General A. Mitchell Palmer, Postmaster General Albert Burleson, and Justice Oliver Wendell Holmes.54

  Holmes, the old soldier, brushed it off. “I haven’t thought much about it,” he told Einstein, who had written with concern upon reading the news. “As I said to my wife, if I worried over all the bullets that have missed me I should have a job.” Holmes likewise belittled the alarmed talk in the popular press of “the Red danger in the U.S.” If it was his decision in Debs “that led them to want to blow me up,” Holmes dismissively observed, that only showed “that they were fools who didn’t understand the situation.”55

  New York Times, May 1, 1919

  Much of the country did not take so detached a view of the “Red threat.” Attorney General Palmer launched a sweeping probe of radical organizations that would lead to a series of raids later in the year: as many as ten thousand alleged Communist Party members were rounded up and hundreds deported after summary hearings before a Justice Department official, without any access to legal representation.

  Frankfurter and Chafee joined a number of prominent lawyers who spoke out against the Justice Department’s “illegal acts” in carrying out arrests and searches without warrants and in denying the most basic due process rights to those detained in the Palmer Raids. In response, a young attorney named J. Edgar Hoover at the newly created Bureau of Investigations opened files on hundreds of “subversives” and “radicals” who were aiding communists and “inciting” unrest. Among them were Harold Laski (“an English-Polish Jew, said to be extremely radically inclined”), Zechariah Chafee (“Attorney for Radical Organizations”), and Felix Frankfurter (“a parlor Bolshevist”).56

  Frankfurter, who had spurned Holmes’s advice about the limitations of the academic life to accept a position at Harvard Law School in 1914, had already come in for hostile criticism there for his political views. Holmes caught hints that both Laski and Frankfurter were now in serious trouble at Harvard. In April 1919 he wrote Laski, “Every once in a while, faintly and vaguely as to you, a little more distinctly as to Frankfurter, I hear that you are dangerous men. I even heard it said that he was a bad one—(Do not repeat this.) What does it mean? They used to say in Boston that I was dangerous.”57

  In fact both were bei
ng subjected to a vicious and anti-Semitic campaign by conservative faculty members and influential alumni who wanted them fired. The same “narrow tribe of Beacon Hill and State Street,” as Frankfurter called them, that had opposed Brandeis’s nomination were now threatening to withhold their support from Harvard’s fundraising campaign as long as Frankfurter remained on the faculty. When the dean of the law school, Roscoe Pound, refused to fire Frankfurter, the group began pressuring President Lowell to fire him.58

  Laski, who was already the subject of angry complaints from parents that he was indoctrinating their children with socialist propaganda, came in for much more public attack that spring when he supported striking mill workers in Lawrence. A conservative professor of physics at Harvard, Edwin H. Hall, began writing letters to newspapers calling Laski a “bolshevist” and a “poisonous influence”; though fortunately, Hall concluded, Laski—like “a rattlesnake”—gives warning of his dangerous intentions with his noisy speeches.59

  Holmes was president of the Harvard Law School Alumni Association and Laski, while playing down the threat to himself, suggested that Holmes might say a word in support of Pound to head off the attack on him and Frankfurter. Holmes’s position with the association was a purely honorary one—he mockingly referred to himself as King Log—but in May he wrote a carefully worded letter to the association suggesting they pass a resolution commending Pound for all he had done for the school. He also sent a note to Lowell saying that Pound and Frankfurter were worth far more to the school than any addition to the endowment could be. Lowell responded with a reassuring reply; while not mentioning Frankfurter, he said of Pound, “What you say about his value to the law school I agree with entirely.” For the moment at least, Laski’s and Frankfurter’s positions were safe.60