CRF Blog

Speaking Freely

by Bill Hayes

In Speaking Freely for the New York Times Book Review, Alan M. Dershowitz reviews The Great Dissent: How Oliver Wendell Holmes Changed His Mind — and Changed the History of Free Speech in America by Thomas Healy.

Healy is correct in characterizing the change in Holmes’s position as dramatic and unexpected. In the past, Holmes had been a strident and often thoughtless defender of the power of government to punish controversial speech — or as Healy puts it, “to render the First Amendment toothless.” In 1915, he handed down a unanimous decision affirming the conviction of a newspaper owner who had editorialized in favor of nude swimming in isolated areas. And yet in the fall of 1919 he wrote a dissenting opinion arguing that all expressions were protected by the First Amendment “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” Holmes’s Olympian leap from protecting prudes against seeing bathers “with merely the clothes nature gave them” to saving the country from imminent harm surely requires explanation, and Healy offers an intriguing one. [more]