Thomas Healy (3)

An "insider" book similar to Wild Justice (at least the part of Wild Justice I've read so far) recommended to me by a good friend who's essentially a first amendment scholar (name dropping here). Similar to Wild Justice, The Great Dissent tries to provide to the layman a narrative to explain a turning point in constitutional law. The Great Dissent focuses on Holmes's Abrams dissent.

Healy establishes the mystery of Holmes seemingly changing his mind at the Abrams dissent. As Healy describes very cleanly in the book, Holmes was no great proponent of individual rights (despite his dissent on Lochner, which progressives took as a victory even though he was not particularly sympathetic to the progressive cause). This story along with his conversion to Abrams by Holmes's progressive friends is described in the White monograph on Holmes, so the story isn't necessarily original scholarship, though obviously the story is more well fleshed out here. Additionally, Holmes ascribed to the dominant view at the time that the first amendment only prohibited Congress from "prior restraint". Early in English law, parliament controlled the content of printing presses through a licensing system that would only allow printing of material that passed through a state censor. Blackstone, an English jurist who was influential on colonial/revolutionary legal thought, argued that this kind of prior restraint should be prohibited but expressly argued that seditious libel (punishment for speech after it was published) should be legal. In fact, Holmes had written Patterson, a decision that had affirmed this view as the law of the land. Healy tries to explain the shift from this Holmes to Abrams, which introduced the concepts of a marketplace of ideas, where the truth wins and the idea that the government should not punish speech except where it imminently creates a danger that the government may seek to stop. Healy discusses the evolution of Holmes's thought from Patterson to Abrams. Healy conjectures that Holmes's story starts with a chance encounter with Learned Hand on a train, who criticized Holmes's view on freedom of expression (Hand himself wrote the opinion in Masses, a decision that narrowly construed a congressional act to only punish speech if it directly called for law breaking, rather than just general criticism). While Hand argued that tolerance was needed for speech because it was necessary in case the suppressor was wrong (a natural extension of Hand's self-doubt and skepticism). Holmes argued back that though it was true that one could never be sure about one's opinions, it was legitimate for someone to pick a belief and provided they believe enough to suppress what they saw was falsehood. Through Holmes's progressive friends such as Laski, and scholars such as Chafee, Holmes was gradually persuaded to adopt the Abrams stance. Laski and Holmes were incredibly close. Healy argues that the two shared a father-son relationship. Holmes never got along with his famous withholding father, and never had any children of his own (a source of regret later in life), while Laski's father disowned him for marrying a gentile woman. Healy implies that the persecution of Laski for his defense of the police in the disastrous Boston police strike struck an emotional chord with Holmes who wrote Abrams a call for tolerance (Healy uncovers a newly discovered letter from Frankenfurter asking Holmes to write a piece on tolerance, while Holmes turned down the request, Healy implies this was related to Holmes's Abrams dissent). Laski also fed Holmes books on expression and speech (including books that argued that toleration is a positive value), most importantly On Liberty by Mill. Apparently, Holmes had met Mill in person before (but was unimpressed), but on Laski's recommendation re-read On Liberty. Healy argues that On Liberty supplied the argument that Hand could not, that even if a person knew his stance was correct, he can only know that it's correct because it is openly challenged (a precursor to the marketplace of ideas).

Healy argues that Chafee played a vital role in shaping Holmes's opinion. Chafee first attacked the assumption that the first amendment codified the Blackstonian prior restraint concept. Chafee argued that the first amendment actually was a ban on ex post speech punishment as well, as evidenced by Madison and Jefferson's argument against the Sedition Acts passed by the federalists. Madison and Jefferson had argued that the first amendment protected criticism of the government as a means to secure self-rule. Additionally, the act ended when the federalists faced a resounding defeat in 1800, and Jefferson pardoned those convicted under the act. Chafee then argued cleverly that Holmes actually created a new test for speech in Schenck by requiring that the speech be a "clear and present danger". Healy argues that Holmes actually had meant to restate the "bad tendency" test, which only required intent and the possibility that the speech cause harm (a test that Hand argues gives a jury too much power since it is so subjective, allowing the jury to punish speech they disagreed with). Certainly, the way the test was applied in Schenck and its companion cases including Debs did not seem very pro-speech (apparently Holmes's famous formulation that freedom of expression does not protect the act of a man shouting fire at a crowded theater was lifted from the prosecutor's closing argument at Debs). However, this gave Holmes cover to claim that Abrams was consistent with Schenck. The book of course is so much more than that, a character study of Holmes, Brandeis, Laski, Frankenfurter, and the defendants in the various speech cases as well as a historical narrative of the prevailing attitudes and strife (racial and labor) of the era. Worth a read, though frequently repetitive and overly explanatory (in particular, who cares about Holmes's love life? or the backgrounds of each speech defendant?). The book just did not strike the right chord with me, perhaps the White monograph already took the steam out of the "plot" of the book.… (more)