The Principles of Oliver Wendell Holmes 7

In 1918, this was the creed of a liberal. For the rights Holmes had in mind were “the right to property” and “liberty of contract,” rights which courts had, in the view of political progressives, invented in order to declare unconstitutional legislation intended to regulate the economic life. In Lochner (1905), for example, the Court had voided an act of the New York State legislature that limited, on grounds of public health, the number of hours employees could work in a bakery—a decision the majority based on the putative right, constructed out of the Fourteenth Amendment, to liberty of contract. Holmes, in his dissent, had argued not merely that the Fourteenth Amendment did not enact the liberty of contract, but that reading liberty of contract into the language of the Fourteenth Amendment short-circuited the very thing the law was supposed to allow for, which was the flexibility to adapt to circumstances as cir¬cumstances change. “A constitution is not intended to embody a particular economic theory,” as he put it, “whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the acci¬dent of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.”
This belief—that the Constitution is designed to allow the majority to experiment, at the expense of the interests of individuals, with different social theories and arrangements—made it easy for Holmes, in 1919, the year after his essay on “Natural Law” appeared, to write three opinions for the Court sustaining convictions under the Espionage Act. The convictions (one was a ten-year sentence for Eugene Debs) were for expressing opinions calculated to en-courage others to interfere with the American war effort—for example, by resisting the draft. They were cases, in other words, in which speech had been judged to constitute an incitement to a criminal act. It was in these opinions that Holmes formulated what has come to be known as the “clear and present danger” test for the prosecution of speech: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,” he wrote, in Schenck v. United States. “It is a question of proximity and degree.” The “clear and present danger” test has received a good deal of criticism from commentators who find it insufficiently protective of speech—for example, Gerald Gunther, in his great biography Learned Hand: The Man and the Judge (1994). In 1919, Hand was at the beginning of his long career as a judge. His regard for Holmes was virtually unadulterated: he considered Holmes, he once said, “the epitome of all a judge should be.” But Hand thought that Holmes’s formulation in Schenck was too broad. Two years earlier, Hand had written an opinion, in Masses Publishing Co. v. Patten, enjoining the New York postmaster from refusing to circulate, because of its antiwar sentiments, Max Eastman’s journal the Masses, arguing that speech can constitutionally be suppressed or punished only when the words used explicitly counsel a violation of the law. The Masses, he believed, was being persecuted for its politics under cover of what would otherwise be an acceptable state effort to prevent interference with the war effort. “To assimilate agitation, legitimate as such, with direct incitement to violent resistance,” Hand said, “is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.” (His decision was quickly overturned.)
Hand believed that his construction provided narrower and more “objective” grounds for the prosecution of speech than Holmes’s did; and in conversations and letters, he tried to convince Holmes to adopt it. Holmes was persuaded (by Hand and others) to regard some prosecutions under the Espionage Act as unconstitutional, as he did the following term in the Abrams case; but he was never persuaded to adopt Hand’s formula, and he even claimed not to see Hand’s point. “I don’t know what the matter is, or how we differ,” he complained in a reply to one of Hand’s letters. The matter was that under Holmes’s rule, liability hinges on the probability that the evils Congress wishes to prevent will happen as a consequence of the speech in question, and this probability cannot be merely a function of the “objective” meaning of the words uttered. It is not strictly a matter of meaning, in Holmes’s formulation; it is a matter of proximity and degree. I may counsel resistance to the draft in the shower as explicitly as I like (as Hand, of course, would have conceded). But out of the shower and before an audience of potential conscripts, I may communicate the same advice in language that never quite reaches the level of explicitness Hand’s test requires, but that has the intended effect nonetheless. There are many ways to skin, linguistically, a cat. Gunther is correct to claim that Hand’s formula is much more speech-protective than Holmes’s. But Holmes’s is much more language-sensitive. Holmes’s theory of free speech rests on the assumption that informed Holmes’s whole approach to liability generally, which is that the community can, given the facts, judge when speech crosses the line of expression and becomes incitement. Whether this is an attractive theory or not from a civil libertarian point of view, it is consistent with Holmes’s belief that experience conditions language (and everything else) in unpredictable ways. We don’t know in advance what words will constitute an illegal incitement and what words will not. We have to measure the intent of the speech by Holmes’s usual standards: by context and experience.

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