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

In Fox v. Washington Holmes found that a book written by Fox (“The Nude and the Prude”) was harmful speech that violated the First Amendment because it incited citizens to break the law (indecent exposure). This precedent, if enforced, would find any modern book, movie, TV Show, or video game as harmful speech.

In Schenck v. United States Holmes found that Schenck violated the Espionage Act of 1917. In this case, since Schenck was found guilty of a conspiracy to obstruct enlistment in the armed services for WWI there was no need to find a proximity to harm, yet Holmes cites his “clear and present danger” doctrine in his decision which should have had no bearing on the case. Schenck proved that Holmes was not only wrong about free-speech, but he was confused and could not even follow his own doctrines. Frohwerk v. United States was a similar case because it too involved a conspiracy and that in and of itself forced the Court to uphold Frohwerk’s conviction. However, the cases were vastly different: Schenck was a high-ranking officer in his Socialist Party while Frohwerk was simply a poor working man carrying out the orders of his employers; Schenck targeted drafted Americans but Frohwerk did not attempt to reach Americans subject to the draft; evidence against Schenck involved both speech and a high volume of non-verbal speech (Pamphlets) but evidence against Frohwerk consisted of only a small circulation of non-verbal speech. Frohwerk was a pawn and took the fall for his bosses. Frohwerk had no harmful intent nor did he have any proximity to harm, but since it was a conspiracy case Holmes felt he had no choice but to uphold his doctrine and theory of legal liability. The Frohwerk decision was proof that the Supreme Court was providing the United States government increased war-time powers.

In Sugarman v. United States the Court held that it did not have jurisdiction over the case. However, according to Holmes’s theory of legal liability he would have concluded Sugarman was rightfully convicted for violating the Espionage Act. Anything that hindered the United States war effort against Germany was said to be a violation of the Espionage Act. Sugarman was arrested for giving a speech condemning the draft at a Socialism Party meeting in which draft eligible men were present. Similarly, in Debs v. United States, the case and outcome were very close to that of the Sugarman case. In Debs, Holmes declared a clear and present danger of intent to obstruct the war effort. Debs, like Sugarman, was a socialist who condemned the war effort in many of his public speeches. But I find it hard to believe that Debs and Sugarman (who both represented very unpopular political parties) could convince but a few young men to commit a crime and dodge the draft. The only “clear and present danger” were the thoughts going Holmes’s brain.

Holmes would change his views on free speech in Abrams v. United States and Gitlow v. New York. If Holmes had followed his previous theory of legal liability doctrine he would have upheld convictions in both cases. In his dissent Holmes found Abrams innocent of violating the Espionage Act. However, the majority used Holmes’s “clear and present danger” doctrine to uphold the conviction but for some reason Holmes went against his own doctrine. Even if the defense argument was factual that they did not want to hinder the war effort with Germany but merely wanted to enhance United States foreign policy with Russia, the group sought to incite labor strikes which would hinder the war effort. This case was probably more egregious than Schenck or Debs, but Holmes changed his views. There was truly a clear and present danger, maybe even more so than in Schenck or earlier cases decided by Holmes differently. In Gitlow, Holmes did not find advocacy of criminal anarchy was harmful (but any effort to affect the military draft was harmful). In fact, Holmes generally practiced “restraint” and almost always sided with police power (state legislation), but not in this case. Abrams and Gitlow are generally cited by liberals who revere Holmes and his defense of free speech. But Holmes’s “clear and present danger” doctrine upheld the convictions of both Abrams and Gitlow. The damage had been done, Holmes’s doctrines would be used for decades to restrict free-speech until it was abandoned by the Warren Court in the 1960s. But what changed in Abrams and Gitlow? Everything points to how Holmes should have decided these cases differently: Holmes had a contempt for natural rights, especially free speech and he saw no relationship between the law and morality (positivism); Holmes’s principle to conform to the powers of state government (judicial restraint); Holmes’s value of speech: the more valuable the speech the more protection and the less valuable the speech less protection; Holmes’s view that law is created to coerce citizens into compliance (judicial restraint); Holmes’s view of siding with majority factions (popular sovereignty and judicial restraint); Holmes’s positive view of war and its necessity; and Holmes’s theory of legal liability all pointed towards restricting the speech of Abrams and Gitlow. One argument was that Abrams and Gitlow were not popular cases with the mainstream media and the public and therefore there was not as much hysteria over the threat of communism compared to persons trying to hinder the war effort against Germany (Gitlow was after the war). Gitlow was a major case for another reason: It applied the First Amendment to the States. It is believed that Holmes supported applying the First Amendment to the States to create a landmark ruling and appease his superego. While the majority agreed that the First Amendment could apply to the States, Holmes thought by ruling against the legislative statute would make it clear the First Amendment did apply to the States. Remember, very rarely did Holmes rule against state legislative police power, so there must be some reason. Others would like to believe Holmes had a change of heart and all the sudden believed that free-speech and natural rights needed more protection. I would buy that argument if Holmes was consistent with all his free-speech cases after Abrams, but that was not the case.

In Pierce v. United States, the Court upheld convictions for violations of the Espionage Act. This case, like Schneck, dealt with a conspiracy and the distribution of an anti-war leaflet. Despite the similarities in the cases Holmes changed his view and joined Louis Brandeis dissent. In Schaefer v. United States, the Court upheld the conviction using similar logic as it used in Pierce. Schaefer dealt with a German language newspaper which changed articles and editorials it reprinted from other news sources. Once again, Holmes joined Brandies dissent even though this case had a lower threshold of proof since it was a conspiracy like Piece, Schneck, and Debs. Yet, in another similar case, Gilbert v. Minnesota, Holmes concurred with upholding the conviction of Gilbert who gave speeches that were anti-American. In Gilbert, Brandies was the lone dissenter. What made this case so different than Pierce or Schaefer? First, it was a state and not a federal case. Holmes’s first inclination was to practice judicial restraint and uphold state legislation and rulings regardless of their consequences on individual rights even if the decision conflicts with his earlier precedent. Secondly, Holmes objected because Gilbert’s speeches were said to instigate the crowd and make them unruly. Gilbert precedent would deem any modern conservative political speech unconstitutional because they always instigate, upset, incite, and anger liberals. Gilbert was proof that Brandies saw that free speech could only be restricted by the federal government during war times, but Holmes saw that free speech could be restricted by both the federal government and police power in times of war and peace. These philosophies were further enforced in United States v. Burleson where both Brandies and Holmes wrote separate dissents. Brandies dissent points to a difference between war time and peace time speech and Holmes’s dissent merely points to the fact that one man, the Post Office General, would have too much power. This, once again, violates Holmes’s position is Davis. If the federal government could deny any public speech, then why couldn’t a Post Office General deny seditious speech as outlined by a federal law. Since only Congress could declare war, Brandies felt only federal law could impinge free speech and States had no power to impinge speech. Holmes disagreed and his deference to state legislation provided state legislations broad power to control free speech. In Whitney v. California, the Court upheld the conviction of Whitney because membership in a group that advocated violence regardless of harm was sufficient grounds to convict any subject for conspiracy. Although Holmes and Brandies concurred with the conviction they dissented saying that the California statute was too broad because it could merely target political groups. Brandies Whitney dissent (Holmes joined) is seen today as the modern doctrine for free speech: not “bad tendencies” or a “clear and present danger” used by Holmes. Brandies brought forth the idea that free speech and individual liberty are closely related. Brandies also introduced the idea that speech had to be inciteful to abridge the First Amendment. Brandies said “The fact that free speech is likely to result in some violence or in destruction of private property is not enough to justify suppression. There must be the probability of serious injury to the state.” Obviously Brandies free speech philosophies are much more protective than those of Holmes.