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
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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).
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