Tuesday, January 10, 2017

The Great Dissent, by Thomas Healy

Today I'm looking at something a little different, a history of a legal opinion and the development of free speech in the United States. Although considering I listened to a book just about the Magna Carta which, albeit briefly, talked about its influence on English and American legal tradition I suppose this shouldn't come as much surprise. My curiosity was piqued as I was looking through books at the library because I knew nothing about Oliver Wendell Holmes, Jr. and had only a vague understanding of the development of free speech in the United States. I was aware of the Alien and Sedition Acts of 1798 which forbade scurrilous or critical comments of the government, which went against both the spirit and intent of the First Amendment. Unsurprisingly Thomas Jefferson, opponent to Hamilton and the High Federalists who pushed through those acts allowed them to lapse without renewal. But I didn't know there hadn't really been any other important litigation on the First Amendment for much of the nineteenth century and it wasn't until free speech was once again abridged that the issue came before the Supreme Court. And it was only through intervention by his friends that Justice Holmes, initially not a supporter of what we would consider to be free speech, became one of its most ardent supporters.

As most of you probably know, the United States entered World War I in 1917. As part of the war effort, Congress passed a number of laws including the Espionage and Sedition Acts in the name of national security. In addition to making stiff penalties for spying against the United States, these acts also made it illegal to hamper the draft or military recruitment, incite mutiny within the U.S. armed forces, or criticize the government and its policies (among a laundry list of other offenses). In addition to being a clear abridgement of free speech, prohibiting legitimate criticism of the government, the act was so broad that it could easily have been used to persecute almost anyone for disloyalty. However since the majority of people prosecuted under these acts were foreigners or socialists, quite a few people supported the acts and said complete and unrestricted speech was a dangerous thing.

Healy also explains that there were different and competing definitions of free speech at the time, which influenced how people, including Holmes himself, understood the First Amendment. The first, and far more narrow understanding was that freedom of speech meant no restrictions could be made on publication or expression. People were perfectly free to express whatever opinions they desired in whatever manner they wanted, and the government could not censor those ideas. However, once people have published, this did not make them immune to legal punishment. If someone said something the government didn't like, they could still face consequences for their actions. The much broader definition of free speech included the idea that the government could not prevent people from publishing opinions, but also could not punish them for expressing those opinions, which is what we understand free speech to mean today. Interestingly this was almost a radical idea in 1919 and it took considerable time for Holmes to come around to this viewpoint, which remained at least in the short term in the minority.

Most of the book focuses on Holmes's gradual shift from a far more limited position on free speech to the more liberal. Friends and peers who exposed him to numerous books, articles, and other sources of information gradually challenged his opinion on free speech and show how even an octogenarian, fairly set in his ways, can be persuaded through persistent argument. Personally I thought this was really interesting because we take freedom to shoot our mouths off about almost anything so for granted nowadays that it hardly merits a second thought. But there were numerous periods in history where atheists, socialists, communists, and other radicals were persecuted for their attempts to spread their ideas. Today's landscape is still fairly messy, but it's much easier for people to put their ideas out for all the world to see.

Of course, this does lead to the problems of free speech, which that it's very nice in principle but ultimately we're going to run into some ideas that we don't like. And the knee-jerk reaction is to try and silence opinions that we don't like. It's much more difficult to listen to differing opinions and debate with them but it also makes our position that much stronger. As Holmes himself elegantly put it, we cannot be entirely certain of anything in life and are really hazarding our best guesses. Freedom of speech allows us to put multiple ideas out there and to test all of them. The ideas that are strongest and have the most merit will stand up over time, while ideas that are silly or poorly grounded will ultimately be rejected through the free exchange of ideas. If we do not challenge anything, we have no way of knowing if it's really as good a guess as we think it is or not. The process is messy and hardly straightforward, but it allows all avenues to be explored.

Overall I thought this was pretty interesting. I never really thought about the First Amendment and how something as basic as freedom of the press and freedom of speech wasn't as taken for granted as it is today. I also found it reassuring that if people are exposed to new ideas or new information, it is possible to change their mind over time, as is the case of Oliver Wendell Holmes. Although he would never admit it himself, Holmes did change his mind and I think we can say it was for what was ultimately the better.

- Kalpar

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