Dec 12, 2014

The Great Dissent -- Establishing the Rights under the 1st Amendment

Wednesday, December 10th was International Human Rights Day. The day is celebrated each year on the 10th of December, commemorating the day in 1948 on which the Universal Declaration of Human Rights was adopted by the United Nations. (Some time ago the History Book Club read A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights by Mary Ann Glendon, a very good book!)

Appropriate to the day, 14 members of the club met at the Kensington Row Bookshop to discuss The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America by Thomas Healy.  The book focuses on Supreme Court Justice Holmes changed his views on the First Amendment -- the section of the Bill of Rights that guarantees freedom of speech.

The United States during World War I made laws against espionage (1916) and sedition (1917) that included new limitations on freedom of speech. Cases under these laws eventually reached the Supreme Court and it handed down six decisions that interpreted the first amendment in terms of these laws in 1919. Justice Holmes clearly was rethinking the interpretation of the first amendment during this year, and his dissent at the end of the year is regarded as a landmark, setting forth an interpretation of the amendment that eventually became the majority opinion of a later, more liberal court. The book looks at who Holmes was, and how he came to change his opinion to become a defender of the importance of free debate on important issues. (Holmes in his opinions introduced such famous phrases as "there is no right to yell fire in a crowded theater" and the government may limit speech "only when it creates a clear and present danger".)

Before the meeting a member circulated a "background piece" for those reading the book. Before the meeting we also distributed links to Alan Dershowitz' review of the book in the New York Times Book Review. Here is also a video of Thomas Healy discussing the book.

There is a John Sturges film about Oliver Wendell Holmes from 1950, for which star Louis Calhern received an Academy Award nomination, . It is titled The Magnificent Yankee. The club members were alerted to the film prior to the meeting and one viewed it and reported that it gave a useful impression of Justice Holmes, as represented by people who would have seen him before his retirement from the Supreme Court in 1932.
"I used to say when I was young, that truth was the majority vote of that nation that could lick all others. Certainly we may expect that the received opinion about the present war will depend a good deal upon which side wins (I hope with all my soul it will be mine), and I think that the statement was correct insofar as it implied that our test of truth is a reference to either a present or an imagined future majority in favor of our view.Oliver Wendell Holmes Jr. "Natural Law", The Harvard Law Review 
Who Was Oliver Wendell Holmes Jr.?

He was a Boston Brahmin. (Indeed, his father, Oliver Wendell Holmes Sr. coined the term.) One of the members recalled the tag line from John Collins Bossidy:
And this is good old Boston,
The home of the bean and the cod,
Where the Lowells talk only to Cabots,
And the Cabots talk only to God.
Holmes had little real emotional linkage with the vast majority of the common people. This aristocratic distancing of himself from the public was contrasted with Holmes' friend, Supreme Court Justice Louis Brandeis, who also came from a distinguished family, one with considerable wealth that allowed him to grow up in an affluent environment. Brandeis, however, took a labor relations case and in conjunction with the case visited garment workers; he recognized that they shared his Jewish faith, and that apparently allowed him to form a bond of understanding with those poor and imposed upon workers.

We noted that Holmes might have had his character formed in part by his service in the Civil War. He was wounded three times in battle, the first time in the Battle of Balls Bluff (a local site known to many of our members). Once he was shot through the neck, a wound which a doctor at the scene thought would be fatal. Later in the war he suffered from a near-fatal case of dysentery. A member suggested that that early service might have led Holmes to be especially concerned with espionage and sedition in time of war and committed to the idea that the government could regulate such speech.

Holmes was a legal scholar. He studied law at Harvard after the war and in England, and clerked in an law office before going into practice himself. His book, The Common Law, has been continuously in print since 1881. He also prepared an edition of Kent's Commentaries, which served practitioners as a compendium of case law. He taught at Harvard Law School and edited the Harvard Law Review. And of course he was state Supreme Court judge for 30 years before serving 30 years on the U.S. Supreme Court.

Healy's book and the movie The Magnificent Yankee portray Holmes as an older man (he was 78 in 1919), after a long career as a lawyer, a Massachusetts Supreme Court judge, and (from 1902) a U.S. Supreme Court Justice. He read a lot, especially deep and complex works (sometimes in Latin) and  loved to debate with his friends. One member suggested that he came across in these sources as someone you would like personally.

A member mentioned that the number of influential people in Holmes' time was much smaller than today; Holmes seemed to know a large fraction of them. The interlocking networks of influential people sometimes could get things done quickly. Key public intellectuals could meet face to face and discuss questions of law and constitutional interpretation.

The Interpretation of the First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The First Amendment
The First Amendment does not say that any speech is legal. It was never construed to mean that the government could not regulate slander nor libel, nor that it could could not try and convict a spy for passing military secrets to the enemy.

So who decides what is legal speech and what is not? The courts do! And who decides ultimately whether a new law is permissible or whether it infringes on the right to free speech guaranteed by the First Amendment? The Supreme Court does. That principle was established under Chief Justice John Marshall.

One member noted that, contrary to common opinion, John Marshall was not the first Chief Justice of the Supreme Court; John Jay was. (Jay was, among other things, President of the Continental Congress in 1778-79, one of three authors of the Federalist papers, and a negotiator of the Treaty of Paris by which Great Britain recognized American independence. Marshall was in fact the fourth Chief Justice, serving in that role from 1801 to 1835.)

A member noted that he had looked up First Amendment cases to be surprised that there very few in the century before World War 1. However, prosecutions under the Espionage and Sedition laws (which had passed during the war) reached the Supreme Court on appeal, leading to the series of six decisions in 1919 described in the book. Holmes wrote the first decision for the court sustaining a conviction and did not write his "great dissent" until the sixth. In that case he held that the public need for free discussion of ideas was sufficiently important to accept any small risk that the speech identified in the case might have been to the nation.

The group made a conversational detour to comment on the Supreme Court processes. It was noted that fewer lawyers were actually appearing before the court now than in the past; both liberal and conservative justices have indicated their preference for this change as they deal with people who better understand the court and its processes; the current cadre of lawyers appearing before the Supreme Court were described as more expert in constitutional law. Two members present described having attended hearings before the court, one as an attorney and and another as a member of the public; attorneys and the public do so under different rules.

How Did Holmes Come To Change His Mind?

The book describes a series a process in which Holmes discussing a lower court decision declaring the law unconstitutional with its author, Judge Learned Hand. It mentions his conversations with Louis Brandeis (then a Harvard Law School faculty member and friend of Holmes') and other legal scholars. He read articles appearing in law journals that year relating to the constitutionality of the laws. He also read voluminously on legal theory, going deeply into books recommended by Brandeis and Harold Lasky (another Harvard Law professor and friend).

The book does not deal in much detail with the briefs prepared for the six 1st amendment cases decided in 1919, nor with the oral arguments. (A member noted that oral argument was much more extensive in those days; Holmes is portrayed in the book as listening intently to arguments and making notes for a while, but likely to fall asleep late in the process.) Author Healy, of course, was unable to discover what was said in the privacy of the discussions of the cases among the justices.

It was noted that today a Supreme Court Justice is supported by law clerks and can delegate the reading of briefs and identification of key issues to staff. That is why oral arguments are now focused on the issues that the Justices feel are critical to their decisions (and not necessarily those that the advocates want the Justices to focus on). The Justices will have already identified the issues on which they intend to make their determination in the case; they use brief oral arguments to focus on just those issues. In Holmes' day such support was not present; Holmes had young law graduates as secretaries, but their role was different and less substantive than that of modern Supreme Court clerks.

One member mentioned that the book failed to deal in much detail with the changing circumstances that might have influenced Holmes. The war ended in November 1918, so the dangers involved in speech against the war were much reduced. On the other hand, there was a scare about Bolsheviks and Anarchists (compared by members to the Red scare and McCarthyism after World War 2); people were being arrested and even deported for their views.

It was noted that the laws were enforced against people with leftist views, while people with right wing views saying equally incendiary things were not arrested. A member noted that the KKK, which limited members to white, native born, protestant men, included between one-third and one-half of all eligible Americans in the 1920s.

A member, who is a lawyer, noted that the Supreme Court tends to make decisions on narrow grounds rather than seeking to make fundamental changes in the interpretation of the Constitution. Such landmark changes do occur (as in the case discussed in this book, or in Brown vs. the Board of Education or Gideon vs. Wainwright). However, the Court seeks to wait until an issue is mature before making such landmark decisions. Perhaps Holmes' dissent was a recognition that the issue of freedom of speech was nearing maturity and was a first step in the process by which the Court eventually recognized that action in a democracy is best justified by a free and vigorous exchange in "the marketplace of ideas".

A Current Case

Elonis v. United States was argued before the Supreme Court earlier in the week, and had been the subject of an exchange of views on the History Book Club listserve. That discussion continued in person Wednesday evening (and is continuing on the listserve). The case involved statements made in social media, whether they were intended as threats, and the damage done by threats.

One of our members, a lawyer who had represented women who had been repeatedly threatened by estranged husbands, said that these threats themselves harmed her clients (and are too often followed by physical abuse), but that the threatened person seldom gets legal relief. There were several amicus briefs in Elonis v. United States calling for greater protection of people against such threats.

We discussed the issue of intent. It was mentioned that if the person posting the text were a child, mentally ill, or suffering from dementia the courts would be expected to construe that such a person would not have the mental capacity for legal intent; the words themselves do not constitute a crime.

On the other hand, it seemed clear that threatening words could in and of themselves do harm. If the author could and should have understood that such harm would result from his publishing those words, then perhaps intent to harm could and should be inferred.

A member shared his experience with a friend who was arrested, tried and convicted for the crime of conspiring to assassinate the dictator of his Latin American country. The friend was sentenced to be executed, but due to an international letter campaign, the sentence was commuted to emprisonment; when the dictator was overthrown, the friend was released from prison. Years later the friend described how, when a medical student, he had discussed the assassination with fellow students; they were indeed talking about how, when and where to kill a man; however, the friend was not sure that they ever would really have had the courage and strength of conviction to do so. Essentially, the friend himself was not sure that they really had the intent; this was somewhere between a typical student late night discussion from which nothing would follow, and a real assassination plot. Intent is hard to judge!

There was a follow up to the story. It seems that conviction for conspiracy to assassinate a dictator can be a career more, if done at the right moment. The man in question finished medical school after release from prison, rose to be a senior professor in the medical school, and eventually served for years as Minister of Health in his country.

Personal Experiences

One of (the older) members of the club described his experience giving a series of lectures on McCarthyism in the 1950s at the mid-western university where he was teaching. The school administration was very conservative, and the lectures were given at some peril to his academic career. He was surprised that some 90 people showed up for each lecture. Fortunately, there were no actual negative repercussions.

Another said the threats during the McCarthy era were real. One of his teachers, who taught poetry, lost his job and was blacklisted for his political views. It was suggested that the threat was perhaps greatest in Hollywood, where people like Dalton Trumbo and Jules Dessin were blacklisted and had to work under pseudonyms or abroad for many years.

Jules Dessin and Melina Mercuri in
Never on Sunday
also written and directed by Dessin
The member also described boarding in a student coop which was on the California Attorney General's List (of subversive organizations). That seems absurd now. However, a student belonging to the cooperative had formed "the Tibetan Brigade" to go to Tibet and fight against the Chinese invasion of that country. Not only was the Tibetan Brigade put on the list, but so too was the Berkeley student coop rooming and boarding house.

The Second Amendment

A member, noting that while there are many ways that the government is able to regulate speech in spite of the First Amendment, there seems to be such resistance to regulating gun ownership which is protected under the Second Amendment.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. The Second Amendment
That comment led to a lively discussion. One member pointed out that firearms are actually regulated in many ways; the law prohibits a citizen buying a working machine gun nor a functional military rocket launcher; laws limit the right to carry a concealed weapon in many places. (The National Firearms Act of 1934 was the first national law regulating firearms. It was a reaction to the use of weapons during prohibition, especially by organized crime.)

It was suggested that the NRA has been an important force influencing the public and legislatures about the 2nd amendment. The NRA draws income from members and its publications, but also from gun manufacturers and lobbies very effectively. It was noted that the NRA was created as a post war initiative (Civil War that is) to promote marksmanship. It was thought by the founders that more young men would need that skill if there were to be a future war. It was only in the late 20th century that the NRA became so effective in opposing gun control legislation. (The NRA has informed its membership about firearms related legislation since 1934.)

That discussion of gun control has generated further comments on the club listserve since the meeting.

Other Current First Amendment Issues

With time growing short, the question was asked if there were other current 1st amendment issues. Issues related to stalking and spousal abuse, and social media were described as having been raised in a significant number of cases since 1940.

It was noted that many great books are banned from school curricula and libraries around the country. A member explained that few of those cases are litigated -- they are done by local school officials or library officials and do not come to the courts, much less to the Supreme Court.

Final Comment

Members of the club really liked this book. It generated one of the most spirited discussions in recent club history; people had to be almost pushed out of the door of the bookshop so that the owners could close up an go home. More people showed up in person for the discussion than had attended a December meeting for years -- people are busy with other things in the holiday season. The book also generated a lot of discussion on the listserve.

The book took us back to 1919 and the life of one of America/s more interesting and influential people; in many ways it was a biography. It also focused on the way in which a man in public life may come to change a long held idea, and in doing so (as a public intellectual) begin the process of changing public opinion and the law. Appropriate to International Human Rights Day, the book served as an occasion to think and discuss the right to freedom of speech.

There are comments on the book by members posted on the Internet herehere and here.

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