Oliver Wendell Holmes was no Protector of Free Speech (Part I)

In past publications, I have uncovered the evils of Oliver Wendell Holmes. Holmes was a bigot and racist as his decisions in Mueller v. Oregon (gender discrimination), Baily v. Alabama (racial discrimination), and Buck v. Bell (mentally challenged discrimination) illustrate. Holmes’s Lochner dissent was revered in history. Yet, in Bailey Holmes contradicts his views about contracts in Lochner to uphold a flagrantly racial discriminatory law. Holmes was on the wrong side of history in all these cases, even in Lochner. Liberal courts have used the substantive due process techniques introduced in Lochner to uphold abortion and gay rights. In fact, Holmes saw the Fourteenth Amendment as “perverted” and therefore, discrimination was never considered by Holmes in terms of equal protection under the law. Consider the case Interstate Consolidated Railroad Company v. Massachusetts where Holmes held that a law forcing the railroad company to charge students half price was constitutional. Holmes said the law could be upheld by calling it an education tax. However, this law was discriminatory because it was a tax against only railroad companies. A tax should be consistent and target all businesses equally. This decision also conflicted with Holmes’s decision in Pennsylvania Coal Company v. Mahon. In this case Holmes held that a Pennsylvania law was unconstitutional because it was a taking of private property without just compensation. A tax is also an unjust taking of private property when it targets just one business sector. Holmes had a “political attitude” towards the law because he believed that the law should follow the philosophies and ideas of popular sovereignty. Holmes felt that lawyers also needed to be experts at economics. This makes little sense, but it may help explain many of his decisions in Mueller, Lochner, Mahon, and Interstate Consolidate Railroad Company. Holmes felt his opinions favored what was economically best for America, not what was legally best. And since a majority of Americans had subpar views of women in the workplace, minorities, and the mentally challenged, Holmes felt it was the will of the people to discriminate against them. It was okay to discriminate so long as the power of the majority felt it was okay. Holmes’s view on speech was not much different. Holmes would defer to popular legislation to restrict speech more times than not.

One of the great attributes accredited to Supreme Court Justice Oliver Wendell Holmes was that of being a protector and champion of free speech. This is far from the truth. In most free speech cases Holmes followed his theory of legal liability which includes distinguishing between harmful acts, attempts, and abuses of privilege. Harmful acts were particularly easy to identify. If a speaker’s act was harmful then the speaker was liable for their actions regardless of any intent or foresight. This followed the doctrine of “bad tendencies” utilized by the Court to determine what speech is protected and which speech is outside constitutional protection. For instance, Holmes would classify someone yelling fire in a crowded movie theatre as an example of harmful speech because it could incite a melee (I doubt this famous Holmes example would win any support in the modern Court). Many harmful speaking acts are privileged such as criticizing public officials and rights to association. However, that privilege may be rescinded if an unlawful conspiracy is charged against a group of association. In cases of conspiracy defendants are guilty if unlawful intent is proven regardless of any proximity of harm (a clear and present danger). In individual cases where no conspiracy exists, both unlawful intent and proximity of harm must be proven. An attempt is when liability may be imposed on non-harmful acts but only if the speaker intended harm and there was a proximity of harm. An attempt is the hardest to act of liability to prove. For example, in one case Holmes wrote “If a defendant had gone no further than to buy a box of matches for the purpose [to start a fire], he would not have been liable”, but if the defendant went to the place he intended to start a fire and changed his mind he would then be guilty of attempted arson. By holding free speech to same standard as his theory of legal liability, Holmes decreased free speech rights and by no means expanded or protected free speech rights.

McAuliffe v. New Bedford was a case decided by Holmes while he sat on the Massachusetts Supreme Court. The case involved a statute where a policeman whose political free speech was restricted while he held a public service job. Holmes declared “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” This statement cannot be more wrong because all people have a right to pursue any lawful profession. Similarly, in Laurel Hill Cemetery v. San Francisco Holmes said a law that denied cemeteries within the city limits was Constitutional. Once again, Holmes sided against the right of the individual to pursue a lawful occupation at the expense of discriminatory state or local legislation. In Holmes’s view the burden of proof was on individuals to prove state laws were not needed instead of on state legislators to prove why the laws were essential especially those that violated the rights of an individual. And the only reason a state or municipality needs to pass a law, in Holmes view, was because it was what a majority wanted. In Holmes view, there was no need to show a compelling state interest for laws that violate the rights of individuals. Holmes ignores the Constitution and its view to protect the natural rights among citizens equally without bias to majorities (this is how practices like slavery start). In Holmes view judges should uphold dumb, stupid, harmful, or discriminatory laws if that is what the majority wants. This type of thought is just dangerous. One person’s rights are not more important than another person’s rights merely because one belongs to a majority. But this is precisely what Holmes decides in Laurel Hill and McAuliffe. Remember, Holmes said, “The whole collectivist tendency seems to be toward underrating or forgetting the safeguards in the bill of rights….” In Commonwealth v. Davis (also decided while on Massachusetts Supreme Court), Holmes’s opinion declared that a State has the right to forbid any public speaking in the streets and in parks. Of course, these early rulings by Holmes were perverse and have absolutely no bearing in modern society. If Holmes had his way, the government would employ the speech police to keep Americans in line.

In Hanson v. Globe Newspaper Company Holmes found the newspaper libel when it erred in writing critically about H.P.H Hanson as H.P. Hanson. The real H.P. Hanson filed suit. Even though there was no intent to harm H.P. Hanson, false statements of fact about Hanson made the newspaper libel in Holmes’s view. Modern courts would never come to the same conclusion. In this instance, the courts would protect the newspaper from a suit since it was an accident and could be corrected by a simple statement clearing the plaintiffs name. It is true, that false statements of fact have no First Amendment protection under modern jurisprudence. However, in this case, the statements may have been false, but they had a lawful intent (not unlawful intent). The paper simply made a mistake. If every mistake made a newspaper liable to a suit then there would be no Freedom of the Press. In Patterson v. Colorado Holmes found an ex-Senator’s editorial about the Colorado Supreme Court was in contempt. This case was about whether the government could enforce prior restraint on free-speech. Even though Patterson’s speech was truthful, his editorial mentioned both current and possibly future cases before the Colorado Supreme Court. Hence, Holmes found Patterson was guilty obstructing justice and found him in contempt. However, the truthful claims by Patterson revealed potential corruption and this should never be a violation of free speech. Why would any whistleblower ever come forward if they could be found in contempt while their truthful statements are ignored? This is another bad decision because it fails to protect one of the most important forms of speech: truthful speech which identifies a crime or the violation of a person’s rights. However, in Near v. Minnesota, the Court found prior restraint of free speech unconstitutional even if the speech was untruthful or had malicious intent. Future letters indicate that even Holmes admitted he erred in Patterson. In fact, Holmes’s change of heart in his opinion for Toledo Newspaper Company v. United States was proof that Holmes knew he was wrong in Patterson. By Brandenburg v. Ohio in 1969 (only literal incitement fell outside of First Amendment protection) all of Holmes’s free speech doctrines would be abandoned. Even during the Red Scare of McCarthyism during the 1950s free speech was not restricted to the degree of Holmes’s free speech doctrines.