Thomas Healy
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Regarded today as the greatest Supreme Court justice in our history.
Professor of law at Seton Hall University School of Law.
He essentially laid the groundwork for our modern understanding of free speech.
He had this sort of shock of very thick white hair on his head.
And... Congress was worried that if people criticized the draft, then they wouldn't be able to raise an army.
Made it a crime to say things that might obstruct the war effort.
Anything that was critical of the form of the United States government or of the president, anything that was disloyal or scurious.
It made it a crime to have a conversation about whether the draft was a good idea, about whether the war was a good idea.
People who forwarded chain letters that were critical of the war.
Or people who said that the war was being fought to line the pockets of J.P.
He saw a sign that said, damn a man who ain't for his country, right or wrong.
And he wrote to a friend and said, I agree with that wholeheartedly.
That experience, that had a huge effect on him.
You know, he watched a lot of his young friends die.
He was part of the 20th Massachusetts Regiment.
And at Gettysburg, the vast majority of the officers in his regiment were killed.
When people were out on the battlefield risking their life, it wasn't too much to ask people at home to support that.
And you think that vaccination might stop the epidemic.
You force people to get vaccinated against their will.
You infringe on their liberty and you force them to get vaccinated.
And he thought the same thing applied when it came to speech.
Why did he change his mind between the Debs case in March and the Abrams case in November?
Every day in his life for about a year and a half time period.
And the letters he was writing, the books he was reading.
And this group, they all gathered in this house in Washington, D.C.
He would stop in on his way home from court and have a drink.
He thought that they were all sort of stodgy and he didn't think that they were that smart.
And all of these young men, they worshipped Holmes.
And so he sort of found a new group of friends.
And he felt like some of these young men were the sons that he never had.
You know, he would write letters to them and he would call them my dear boy, my dear lads.
And they'd write letters back to him saying stuff like... Yours affectionately or yours always.
And they would talk about how much they loved him.
This group essentially engaged in a kind of lobbying campaign over the course of a year, year and a half to get Holmes to change his views about free speech.
And Holmes was so worked up by it that he sat down and he wrote a letter.
To the editor of the New Republic, defending himself.
He thinks maybe it's not such a good idea to be commenting on this issue because he knows that the court has another case coming before it in the fall, the Abrams case.
That these weapons that these people were making were going to be used to kill their loved ones back home.
They were Russian immigrants who were anarchists.
They went on rooftops in lower Manhattan and threw these leaflets from the rooftops.
In the fall of 1919, eight months after the earlier cases had been handed down by the court.
Something happened to these young friends, in particular to Lasky and Frankfurter.
And to the conservative alumni at Harvard, this was just anathema.
And so there was this effort at Harvard... To get Lasky fired from his job.
There was a fundraising effort going on at Harvard...
And a lot of the alums were saying they wouldn't give money as long as Lasky and Frankfurter were there.
So seven members of the court voted to uphold the convictions, but Holmes dissented.
So the first thing he's saying is that we should be skeptical that we know the truth.
In light of that knowledge that we may be wrong, the best course of action, the safest course of action, is to go ahead and listen to the ideas on the other side.
Those are the ideas that we can safely act upon.
He says every year, if not every day, we have to wager our salvation upon some prophecy based on imperfect knowledge.
And the other justices on the Supreme Court, they went to his house and they tried to talk him out of it.
And over the next decade or so, when other free speech cases come up.
Holmes continues to write very eloquent, passionate defenses of free speech.
And gradually, the other members of the court start to listen.
It turns out the people I was looking for all my life is what you people would call nerds.
It's kind of weird, you know, commercial understanding of free speech.
What about thinking about us all as scientists?
It turns out that Holmes relied on another metaphor in his Abrams dissent as well.
He writes, that at any rate is the theory of our constitution.
It is an experiment, as all life is an experiment.
The whole point of free speech is not that, oh, we've got free speech, now democracy is easy.
And one of the ways to promote the success of an experiment is to build in some flexibility.
And so that's another way to think about free speech.