Friday, March 13, 2015

The Great Dissent: How Oliver Wendell Holmes Changed His Mind -- and Changed the History of Free Speech in America

by Thomas Healy

Freedom of speech today is one of the essential democratic freedoms that citizens have come to cherish. Less than one hundred years ago, however, people could be imprisoned for merely criticizing government policies.

Thomas Healy’s book, The Great Dissent, tells the story of how the United States came to embrace freedom of speech, as protected by the First Amendment to their Constitution. The story revolves around one man: Oliver Wendell Holmes Jr. (b. 1841; d. 1935), who served as Supreme Court Justice from 1902 to 1932.

Healy traces Holmes’s path, his “journey toward enlightenment”, as the first-born son of a well-established Boston-area family. Holmes, already a veteran of the American Civil War, attended Harvard Law School and became an attorney. While practising, he worked on his book, The Common Law, in which he showed how the common law evolves, based on precedent. The only book written by a practising attorney, at first it earned Holmes much criticism, but went on to become one of the most influential books on law and is still in print today. Shortly after this publication, Holmes was named to the Massachussetts Supreme Court, where he served for 20 years, before stepping up to the U.S. Supreme Court. Until this time, he seldom wrote dissenting judgements, and those few did not involve constitutional law. 

In the United States, near the end of the First World War, issues regarding freedom of speech emerged. Did the First Amendment protect freedom of speech, and if so, were there any limits on this freedom? Should people have the right to object to wartime conscription? In peace time, did only those whose cause was “just” have the right to speak freely? Did those who worked to overthrow the government also have that right? Such questions formed part of the discourse. 

Healy’s narrative really begins with a chance meeting on a train in 1918. Holmes and his wife take the train from Boston to their weekend cottage. A young attorney by the named of Learned Hand also boards the train, recognizes Justice Holmes, introduces himself, and takes the opportunity to make a somewhat rushed argument for freedom of speech. Healy documents this brief conversation and the ensuing correspondence, which he argues may have started the evolution in Holmes’s views on the subject. In subsequent chapters Healy shows how Holmes’s very bright young friends – Hand, Laski, Brandeis, and Chafee – who held “progressive” opinions on the law, helped shape his thinking – so much so that on the Abrams vs. United States (1919) case, Holmes wrote probably his most famous and often quoted “dissent” – and found in favour of the defendants

This superbly documented and eloquent book makes “lighter” reading out of some fairly heavy –  yet stirring and thought-provoking –  material. The inclusion of personal letters, excerpts from Holmes’s written judgements, and photographs round out the picture of Holmes. Endnotes, an extensive bibliography, and an index complete the volume. This is a very satisfying read, especially for those interested in constitutional law and/or the history of the civil rights movement.

Find this book in the library catalogue. 

This book review was first published in The Business Bridge, the eNewsletter of the Central Library Sciences and Business Department. To read the latest book reviews on business and related topics, why not sign up for The Business Bridge, at:

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