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Blasi traces Holmes’s evolving ideas on free speech to his oft-proclaimed interest in Charles Darwin’s , which was published in 1859 when Holmes was an undergraduate at Harvard.Its electrifying effect on campus intrigued Holmes and nurtured his sense that attitudinal adaptation is encouraged by having a plethora of points of view which help weed out the fallacious and the obsolete.In that unanimous decision, the Supreme Court overturned the conviction of a Ku Klux Klan leader who led a rally of men in robes and hoods, some carrying firearms and flaming crosses.
According to Holmes, Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.
Holmes illustrated his point by writing one of the most famous (and oft-misquoted) sentences in Supreme Court history: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” However, only eight months later, in November 1919, joined by his protégé Justice Brandeis in the case , Holmes would signal a dramatic and pivotal shift in his approach to the First Amendment.
Furman Professor of Law and Leadership at Harvard Law School, delve into the controversial decision in (2010), which held that under the First Amendment, corporations (and, implicitly, unions) could not constitutionally be limited in their expenditure of money used to advocate for the election or defeat of a candidate for federal office.
Abrams, who filed an , believes the decision upholds the fundamental principle articulated by Justice Robert Jackson in 1945 that “the very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion.” But the primary purpose of Abrams’s essay is not to reargue the merits of but to test whether the dire predictions that followed the issuance of the decision were in fact correct.
As recounted in the illuminating essay “Rights Skepticism and Majority Rule at the Birth of the Modern First Amendment,” by Vincent Blasi, Corliss Lamont Professor of Civil Liberties at Columbia Law School (which explains why the year 1919 deserves to inaugurate the Free Speech Century), Holmes’s dissent planted the fertile seeds of our modern-day First Amendment jurisprudence.
Freedom Of Speech Essays Front Page Of The Term Paper
Holmes declared that “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that the truth is the only ground upon which their wishes safely can be carried out.” He saw the Constitution as “an experiment, as all life is an experiment,” but he warned that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.
Consequently, as Blasi sees it, “Holmes came to value the freedom of speech largely for its capacity to generate new ways of thinking, discredit obsolete ideas, and alter priorities of inquiry.” Blasi also admires Brandeis’s immense contribution to building the historical foundation and bold meaning of the First Amendment rooted in the courage and ambition of the Founders.
In 1927, in his concurring opinion in , in which Holmes joined, Brandeis wrote what Blasi calls “his most intellectually ambitious account of the freedom of speech.” Brandeis began by honoring the beliefs of “those who won our independence” that “the final end of the state was to make men free to develop their faculties, […] that, in its government, the deliberative forces should prevail over the arbitrary” and that they “valued liberty both as an end and as a means.” He declared that “the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.” He warned that “[f]ear of serious injury cannot alone justify suppression of free speech and assembly. It is the function of speech to free men from the bondage of irrational fears.” Accordingly, “no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is an opportunity for full discussion.” It would take until 1969, the mid-point of the Free Speech Century, for the views of Holmes and Brandeis to become the law of the land in .
It upheld the convictions and prison sentences of Charles Schenck and Elizabeth Baer, members of the Executive Committee of the Socialist Party, for authorizing, printing, and mailing more than 15,000 fliers to men slated for conscription, which argued that the draft constituted involuntary servitude prohibited by the 13th Amendment; Eugene Debs, a leading American labor leader and five-time Socialist Party candidate for president, for giving a speech in Canton, Ohio, protesting US involvement in the war; and Jacob Frohwerk, a Prussian immigrant, for publishing antiwar editorials in the newspaper , which blamed the war on English empire-building and international cartels of bankers and munitions makers.
Taken together, these decisions affirmed the constitutionality of the Espionage and Sedition Acts and their application to what Schenck, Baer, Debs, and Frohwerk had written and said.