BRIGHT IDEAS: Collins on Justice Holmes and Free Speech

In his new book, The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010), Ronald Collins guides us through the free speech writings of Justice Oliver Wendell Holmes, Jr.   Ron is the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the Washington, D.C., office of the First Amendment Center.

Ron’s book contains numerous excerpts from Holmes’s great judicial opinions, correspondence, essays, and books.  Far from composing the book mainly of excerpts, Ron has provided very extensive commentary and background throughout.  Ron is steeped in the history of his subject and has a rich understanding of the law and theory of the First Amendment.  There is no better guide to help us understand Holmes’s work and thought as it relates to free speech.

I recently had a chance to talk with Ron about the book.

SOLOVE: What inspired you to write this book?

COLLINS: Long story.  It began when I was in law school and read Holmes’s 1919 free speech opinions.  And then, not long afterwards, I read Max Lerner’s The Mind and Faith of Justice Holmes (1943), which fascinated me though it was quite dated by that time.  This was in the 1970s when I was an impressionable law student.  Several years later I met Max – incredible Renaissance man! – and befriended him and then helped him, in 1988-89, with a new and expanded edition of his Holmes book.  That combined with my work in the First Amendment made this latest book a natural for me, though I don’t worship Holmes.  True, he challenged my mind, and I like that sort of thing even when I disagree with someone.

SOLOVE: During the course of immersing yourself in Holmes’s writings, what is the most surprising thing you learned?

COLLINS: There are so many things; Holmes was such a complex man.  Long before I began my book, I knew quite a bit about his First Amendment work, including his pre-1919 Supreme Court opinions.  So, not much surprise there.  I guess I would say I was quite taken by his Civil War experience and how that had such a remarkable impact on his life, jurisprudence, and view of free speech, too. It was the dye that colored everything in the beaker of his thought.

SOLOVE: Personally, what would you consider to be the five most significant writings by Justice Holmes?

COLLINS: Hard call.  But here they are, in no special order:

* “The Soldier’s Faith” Memorial Day address (1895)

(Holmes’s most vivid statement about war and how he viewed it)

* “The Path of the Law” article (1897)

(a provocative statement of Holmes’s “bad man” theory of law)

* “The Natural Law” article (1918)

(Holmes’s attack on law’s “higher law” purpose)

* The Abrams v. United States dissent, 1919

(His most eloquent defense of free speech)

*  The Gitlow v. New York dissent, 1925

(Shows Holmes’s Darwinian like attitude to let the marketplace govern, regardless of dreadful the outcome)

Of course, I left out The Common Law (1881), which doesn’t wear well with time, and Holmes’s majority opinion in Schenck v. United States, which though important was also disappointing.  And I have, as in my book, confined myself to materials related to free speech.  Hence, no extended references to his other important writings such as his 1905 dissent in Lochner v. New York.  One more thing:  Holmes’s 1931 radio address to the nation, this on the occasion of his 90th birthday, was a rather remarkable moment in the oral history of the law.  Just listen to it.

SOLOVE: Beyond the classics of the Holmes cannon, there are many works by Justice Holmes that aren’t as well known.  Among these works, what would you consider to be the five most interesting writings by Justice Holmes?

COLLINS: Once again, it’s a difficult call – there are so many writings to choose from.  But in the free speech context, here are some of the more notable ones, at least as I see it:

* “The Gas-Stokers’ Strike” article (1873)

(One of Holmes’s earliest defenses of market competition and its relation to law)

* “Memorial Day Address” (May 30, 1884)

(a powerful speech with the great line: “In our youth our hearts were touched with fire.”)

* Vegelahn v. Gunther dissent (1896) (Mass. S.J. Ct.)

(an early Holmes dissent that championed the competition in the market idea as a tenet of law)

* United States v. Schwimmer dissent (1929)

(Holmes’s last significant statement on free speech)

* Holmes’s extensive correspondence to Sir Frederick Pollock and Harold Laski

(Among the most remarkable exchange of letters related to law and other things that matter)

SOLOVE: Justice Holmes and Justice Louis Brandeis are considered to be the fathers of the modern First Amendment.  For Holmes, at least, this is somewhat ironic since for most of his career, he voted against free speech claims and few would have ever predicted him to go down in history as a champion of free speech.  Did his views change?  If so, what do you think accounted for this change?  What else might explain this irony?

COLLINS: Say what you will of Holmes, but he will always have his admirers and detractors.  Before 1919 and his awful opinion for the Court in Debs v. United States, Holmes’s showed little sympathy – as a scholar, a state high court judge, and a Supreme Court Justice – for free speech values.  And then he changed in early November of 1919.  Some scholars deny this claim, and I give them their say in my book.  Still, I think he did change and that what he wrote in Abrams and thereafter was due to several factors including the influence that Louis Brandeis, Learned Hand, Zechariah Chafee, and Harold Laski, among others, had on him.  His Darwinian-like take on life and law then co-mingled with the progressive mindset of the day and voilà! – he became the great pater of modern free speech.  Ironic, since he quite often distained those whose speech he defended.

SOLOVE: Thanks, Ron, for a fascinating interview. The book is The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010).  It is a wonderful volume to have — I recommend it very highly for anyone interested in the First Amendment, Justice Holmes, or the history of law.

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