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

In fact, in Fiske v. Kansas, the Court overturned the conviction of Fiske for merely belonging to a socialist political party. Fiske did not pose any risk or threaten violence. Hence, Whitney would not have been convicted if she only belonged to the communist party, but instead she conspired to use violence to release of “political prisoners”. In Burns v. United States, the Court upheld the conviction of Burns. The case was similar to Whitney because it used the same California statute. It was a federal case because the offense occurred in Yosemite National Park. Like Whitney, there was proof that Burns taught and advocated the use of violence and sabotage against the local and state governments. Holmes joined the majority opinion in this case and Brandies was the lone dissenter. In all these cases (other than Fiske), the only person on the Court who held inconsistent views on free speech was Holmes. While a majority of the Justices upheld convictions and Brandies would dissent, Holmes would consistently change his mind even over similar cases.

In Milwaukee Leader v. United States, the Court held that the United States Post Office could deny or charge an inflated rate for newspaper delivery if the substance in the newspaper violated the Espionage Act. Holmes’s dissent is puzzling because it conflicts and contradicts his earlier ruling in McAuliffe. One would conclude if a “police officer who talked politics could be excluded from public employment.” then it would follow a “seditious newspapers could be excluded from the mail”. In United States v. Schwimmer, the Court held that Congress could deny citizenship to an immigrant who refused to take an oath to fight and defend the country. The Constitution is clear and only Congress has the power of naturalization. The Court really has no jurisdiction over this case. Once again, however, Holmes and Brandies dissented even though in a past decision Holmes said: “It is admitted that sovereign states have inherent power to deport aliens, and seemingly that Congress is not deprived of this power in the Constitution of the United States.” Both Milwaukee Leader and Schwimmer violate the views that Holmes expressed in Davis where he said the government could prohibit any public speech. Why have Holmes’s views changed? Why was he contradicting earlier decisions and doctrines? Although he did not side with Brandies on all cases he did on most. I believe Holmes was influenced by Brandies and became his puppet on the Court, especially over free speech cases. Of course, Holmes believes the meaning of the Constitution changes over time. Holmes said, “we do not realize how large a part of our law is open to reconsideration up a slight change in the habit of the public mind.” Furthermore, according to Holmes judges have a “duty of weighing considerations of social advantage.” Moreover, Holmes wrote “The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil.” Therefore, Holmes’s point of view on free speech may be merely evolving based on public opinion or because of certain economic conditions. This is ridiculous, but Holmes was a ridiculously poor Justice. In fact, modern interpretation of the First Amendment much more closely resembles the founders’ intent, it does not resemble the conjured-up scheme of doctrines and philosophies of Holmes’s imagination that failed to provide adequate free speech protection. I would argue that the words of the Constitution are just as precise as any mathematical formula and any alteration from that formula is merely activism that supplants the Constitution with a Justices prejudices and philosophies as law of the land.

Freedom of speech and press would have minimal value if Holmes’s doctrines were practiced by modern courts. Speech would be restricted more than it would be free. Even in cases where Holmes sided in favor of free speech, the majority used his doctrines to side against free speech. And on many cases where Holmes dissented in favor of free speech he would join the words and doctrines written by Brandies (Holmes was silent). Brandies was much more consistent and committed to free speech and his doctrines live on today (especially his Whitney dissent). Holmes was not committed to free speech and his interpretations where hard to understand because he was very inconsistent in his rulings. Holmes’s free speech doctrines (clear and present danger) died out over 50 years ago. Holmes’s deference to state legislation was indeed more important to his doctrine of judicial restraint than protecting any natural rights including free speech of individual citizens. Some may argue that Holmes’s free-speech doctrine was way ahead of its time in protecting free speech. This too is not true. Many judges and legal scholars had doctrines which protected speech far more than Holmes (other than Louis Brandies): Learned Hand, Zechariah Chafee Jr., and Ernst Fruend to name a few that Holmes corresponded with over the issue of free speech. Fruend’s view on free speech is more of our modern interpretation: “No matter what the speaker’s intent was, speech alone was not sufficient basis for an attempt. An actual harm had to result.”