Vermont Bar Journal, Vol. 40, No. 2 Spring 2014, Vol. 40, No. 1 | Page 45

BOOK REVIEW The Greatest Dissent: Holmes in Abrams Reviewed by Jeremiah Newhall, Esq. In Abrams v. United States,1 Oliver Wendell Holmes, Jr., penned a radical dissent in favor of strong First Amendment protections for free speech. It was in this dissent that Holmes ushered the concept of the marketplace of ideas into American jurisprudence. “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market, and … truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”2 Abrams marked an about-face for Holmes, one unexpected by his colleagues. The Great Dissent reveals how Holmes altered course from a derider of the value of free speech to the First Amendment’s fiercest zealot. It chronicles how the arguments in favor of free speech gradually amassed within Holmes’s own mind until, like a coiled spring, these same arguments sprang forth through his pen onto the pages of the greatest dissent ever written. It is a quick, rewarding read. We first meet Holmes in The Great Dissent aboard a train, where he makes a chance encounter with Learned Hand. And the reader does feel transported onto this train, as though crammed into a seat between America’s greatest two greatest jurists as they causally debate the future of the First Amendment. Piecing together these scenes from later correspondence (and drawing heavily from Holmes’s personal papers at Harvard), the book achieves a seductive verisimilitude. Holmes and Hand, in their chance meeting, begin a spontaneous debate on the value of broad protections for free speech. Hand opines that government should permit all but the most dangerous speech, on the theory that however strongly you believe something, you might one day realize that you were wrong. Holmes is unimpressed by the suggestion that his views might be proved wrong—“That is the condition of every act.” As he would later write in Abrams, “all life is an experiment,” but he sees no reason that should caution against suppressing speech. This is not a book with a surprise ending, so it is no spoiler to share that Holmes’s views changed. How Holmes changed his mind is the real drama, one I will take care not to spoil. Suffice to say that Holmes did not disembark that train a man convinced www.vtbar.org of the theory of the marketplace of ideas that he would describe in his Abrams dissent. Abrams will be a century old in just a few years from now. As we begin a new century with a new generation, it is worth recalling that the force of Holmes’s dissent comes from a false premise: that broad protections for speech is “the theory of our Constitution.” When Holmes wrote his dissent, the First Amendment offered scant protection to the views of an unpopular minority, especially in times of war. Free speech as an absolute good was not then an axiom of our nation, as Holmes pretended; it was an experiment entered into gradually, after The Great Dissent by Thomas Healy Metropolitan Books; 2013; 322 pp.; $28.00 great deliberation, and to which America would commit itself only after Holmes’s retirement, when a later Court turned his dissent into precedent. Today, free speech is still not an axiom. Oh, we all want free speech—but with exceptions. Some of us oppose free speech when it means rich oligarchs can spend THE VERMONT BAR JOURNAL • SPRING 2014 limitlessly to promote their own views. We fear that speech broadcast too widely is too powerful, and we lose faith in our fellow citizens to evaluate ideas on their merit rather than their volume. Others of us oppose free speech when it protects views too vile. We flinch at the bile of the Westboro Baptist Church, but to ban their speech would strip our fellow citizens of the right to weigh their words. The illusion of agreement invites complacency. But the right to share our ideas is itself an idea that must compete for acceptance in the marketplace of the mind. Just as it won acceptance with Holmes, the marketplace of ideas must win its acceptance again with each new generation. This is as it should be. But even those who argue to restrict our freedoms of speech do the First Amendment no disservice. As Holmes concluded, the best test of any idea is a strong dissent, a point ably captured in this biography of what may be the greatest dissent in history. ____________________ Jeremiah Newhall, Esq., is a public defender in Orford, New Hampshire. He is a member of the bars of Vermont, Illinois, and New Hampshire. ____________________ 1 2 250 U.S. 616 (1919). 250 U.S. at 630 (Holmes, J., dissenting). 45