- Hardcover: 336 pages
- Publisher: Metropolitan Books; First Edition edition (August 20, 2013)
- Language: English
- ISBN-10: 0805094563
- ISBN-13: 978-0805094565
- Product Dimensions: 6.5 x 1.3 x 9.6 inches
- Shipping Weight: 1.2 pounds (View shipping rates and policies)
- Average Customer Review: 4.5 out of 5 stars See all reviews (69 customer reviews)
- Amazon Best Sellers Rank: #634,690 in Books (See Top 100 in Books)
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The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America Hardcover – August 20, 2013
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A longtime skeptic of individual rights, Supreme Court justice Holmes wrote in 1919 the court opinion that solidified free speech rights in American political doctrine. Holmes’ change of heart has long been pondered by legal scholars and historians. Drawing on newly uncovered letters and memos, legal scholar Healy recounts Holmes’ long, slow process of advocating for free speech at a time of great national turmoil. WWI had recently ended, but the nation faced bombings and explosions, race riots, and the fear of anarchists. The aging Holmes had developed close relationships with several young progressives who challenged his thinking and ultimately changed the way Americans view the First Amendment. Among the persuaders were Learned Hand, then a federal judge, and Harold Laski, then a Harvard professor and contributor to the New Republic. Healy offers a beautifully written history, capturing the lively and passionate debate as Holmes came to see the abiding imperative of free speech and defend it at great cost to his own reputation at the time. --Vanessa Bush
“Riveting... Healy's informative and readable account deserves an honored place in the intellectual history of the Supreme Court.” ―The New York Times Book Review
“Fascinating… A magnificent book about a magnificent moment in American legal history.” ―The Atlantic
“Healy tells the conversion story well, bringing the reader into Holmes's confidence and into the uneasy, war-weary milieu of 1919 America. The Great Dissent is compelling, too, for the glimpses it gives of the human Holmes rather than the Olympian public figure.... A fascinating tale-and a charming one.” ―The Wall Street Journal
“The Great Dissent arrives just when its insight is needed.” ―The Washington Post
“Eye-opening... A stirring mix of intelligent biography and truly significant social and legal history.” ―The Christian Science Monitor
“A skillfully rendered slice of history... With appreciable attention to detail, Healy gives this historical tale of jurisprudence a welcome warmth, humanizing one of the nation's critical developments.” ―The Boston Globe
“Astutely describes a constellation of influences working on the 78-year-old justice-some strictly intellectual, some a reaction to the Red Scare period, some born of his deep relationships with younger comrades... In The Great Dissent, readers who care about the cherished right of free speech will learn just how it got so free.” ―The Dallas Morning News
“Superb... Healy does an excellent job in bringing Holmes, a complex and fascinating man, to life, [and] masterfully guides us through related cases that the Supreme Court decided during this period.... The Great Dissent succeeds as outstanding personal, intellectual, and legal history.” ―., BookPage
“Wonderful and engaging... A persuasive account... The Great Dissent should be of interest to all who care about the First Amendment and constitutional law. More generally, the book is a wonderful exploration of how justices think and arrive at their positions.” ―Erwin Chemerinsky, California Lawyer
“A brilliant, extraordinary book... A first-rate and original intellectual history [that] reads like a suspenseful historical novel... One of the best books ever written about American law, on a par with classics like Gideon's Trumpet by Anthony Lewis and Simple Justice by Richard Kluger.” ―New York County Lawyer
“Engrossing… An exceptional account of the development of the Constitution's most basic right, and an illuminating story of remarkable friendships, scholarly communication, and the justice who actually changed his mind.” ―Kirkus Reviews (starred review)
“Healy masterfully depicts the transition from Holmes's limited view of First Amendment protections to an expansive, eloquent, and precedent-setting interpretation.… Along with clear explanations of the legal theories at play, the author provides context to Holmes's decision with informative descriptions of the historical events of the time and insightful forays into Holmes personal psychology. This is a fascinating look at how minds change, and how the world can change in turn.” ―Publishers Weekly
“A beautifully written history, capturing the lively and passionate debate as Holmes came to see the abiding imperative of free speech.” ―Booklist
“This is the most exciting and illuminating book on the history of the American free speech tradition I have ever read. Thomas Healy’s masterful account is a thrilling combination of intellectual detective work, gripping narrative, and psychological biography. If you’re looking for a page-turner of constitutional history, this is the book to read: with unforgettable detail, it shows how the crowning achievement of American liberty―the principle that speech can’t be banned unless it threatens imminent violence―actually emerged from Holmes’s nimble mind, skeptical temperament, broad reading, and concern for his embattled friends.” ―Jeffrey Rosen, author of The Supreme Court: The Personalities and Rivalries That Defined America
“This is a gem of a book, part intellectual detective story, part judicial biography, and all composed with a flair that makes it a pleasure to read. The revelation-it is nothing less than that-of how Justice Holmes came to write the greatest First Amendment opinion in American history is worth the attention and admiration of all.” ―Floyd Abrams, author of Friend of the Court: On the Front Lines with the First Amendment
“Lively and engaging... The Great Dissent takes us back to the time when a collection of great men-including Learned Hand, Felix Frankfurter, Ernst Freund, Harold Laski, and Louis Brandeis-nagged, cajoled, and eventually enlightened Oliver Wendell Holmes into writing the most eloquent and most important free speech opinion in American history.” ―Geoffrey R. Stone, author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism
“The Great Dissent is that rare book that combines first-rate scholarship with brilliant storytelling. Bursting with intimate details and colorful characters, it brings to life the ideas underlying our First Amendment tradition. Free speech, it reminds us, does not come from the Constitution alone, but from passionate personal struggles.” ―Nadine Strossen, former president of the American Civil Liberties Union and author of Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights
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Top Customer Reviews
The book begins by recounting a meeting between Holmes and three of his colleagues in which they tried to persuade him, in the wake of World War I and the "Red Scare", not to published his draft dissent in Abrams. This is the only such meeting I can remember which has been discussed publicly; fortunately, it was not successful. Next, we learn about the state of First Amendment theory before Abrams, basically adopting the old Blackstone approach which did not allow prior restraint (i.e., before publication) but tolerated speech being punished after it had been published. Holmes seemingly held to this view; this book is the story of how he was persuaded to adopt a more aggressive position according speech greater protection.
Some key personalities make welcome appearances: Justice Brandeis; Judge Learned Hand; Harold Laski; Herbert Croly; Zechariah Chafee; and Felix Frankfurter. The slow "lobbying" campaign engaged in by these folks, the author argues, eventually persuaded Holmes to assume a more aggressive position protecting speech. So we see how Holmes moved from Blackstone and automatic reliance upon jury findings of intent to "clear and present danger" and a bit beyond. This is vital history as regards the development of the first amendment. Particularly conservative attacks on Frankfurter and Laski teaching at Harvard, the author suggests, caused OWH to rethink his position on free speech. Which Holmes did in his own way by focusing upon John Stuart Mill and Adam Smith. It the author is correct in every regard or not, he has recreated the environment in which Holmes issued his influential Abrams dissent.
This is a book for the non-lawyer as well as the legally trained. The author writers with clarity and effective organization. His research, reflected in extensive notes, has been exhaustive. A fine bibliography is included. Particularly helpful is an "Epilogue" which discusses later developments and what happened to some of the key players the author has discussed. We are still contesting the reach of the first amendment today, such as the protection it affords "commercial speech. This fine book takes us back to the beginning of this vital development.
Justice Oliver Wendell Holmes was a brilliant and incisive thinker with a gift for coining memorable turns of a phrase in his Court opinions. “Clear and present danger” (from “Schenck v. United States”) is one of them. But he had an inflexible and stubborn streak, too. Civil libertarians were drawn to him because of his progressive dissenting opinions, but were appalled by his First Amendment views, which flew in the face of pluralism and political tolerance. In particular, the free speech cases involving the U.S. government—“Schenck,” “Frohwerk,” and “Debs”—Holmes ruled against the defendants by reasoning that their speeches threatened national security while the nation was at war.
The Constitution was quite clear on the issue: “Congress shall make no law . . . abridging the freedom of speech.” But the Supreme Court itself had never ruled in favor of a free speech claim, and lower courts had approved all manner of speech restrictions, including the censorship of books and films, the prohibition of street corners speeches, and assorted bans on labor protests, profanity, even commercial advertising. Holmes was consistent in agreeing with these rulings. He was, after all, an advocate of judicial restraint—the idea that judges should defer to the judgment of elected officials.
Enter three individuals determined to change Holmes’ mind: Learned Hand, a federal judge in New York; Harold Laski, an Englishmen and Harvard history professor; and Zechariah Chafee, a Harvard law professor. Over a period of eight months in 1919, they engaged Holmes in person and in letters with what amounted to a series of legal briefs in support of free and unfettered speech as a safeguard of democracy, yes, even in times of war. To support their arguments they quoted from progressive thinkers, notably John Milton and John Stuart Mill. Could their concerted efforts get past Holmes’ stubborn streak and touch his heart? Were their ideas convincing enough to change his mind? They didn’t know for sure until Holmes issued his dissenting opinion in “Abrams,” a case centered on five Russian Jews in New York who had issued leaflets condemning U.S. involvement in World War I. Did their leaflets threatened national security? Seven justices said they did. But Holmes, who was slated to write the Court’s opinion, changed his mind. He found nothing in their leaflets that advocated any violation of law or obstruction of war production, nothing that presented “a clear and present danger” even in time of war. “It is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against popular government,” Holmes wrote, “not to impede the United States in the war that it was carrying on.” Their words didn’t “so imminently threaten immediate interference” with government’s lawful purpose or programs “that an immediate check is required to save the country.” Holmes then went on to get at the heart of the issue:
“(W)hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by the free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.” Further on he wrote: “While that experiment is part of our system I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country.”
Except for Justice Louis Brandeis, who sided with Holmes, the other justices of the Court never embraced Holmes’ dissenting opinion. But as John Stuart Mill pointed out, opinions change. What passed for truth 1000 or even as recent as 100 years ago, can seem silly today. Supreme Court opinions, however "legal" and well-reasoned, are merely that--opinions. Like Holmes, the Court would undergo a change of opinion—in 50 years. In a 1969 case involving a Ku Klux Klan member who advocated violence against the civil rights movement, the Court held that advocacy of violence or unlawful conduct is protected by the First Amendment “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” This rule is a direct descendant of Holmes’ test and remains the governing standard today.
“Holmes’ dissent in ‘Abrams’ marked not just a personal transformation but the start of a national transformation as well,” writes the author. “The power of his words and the force of his personality gave his opinions an authority far beyond the normal judicial dissent. Civil libertarians immediately embraced it as an article of faith, and Holmes’ tribute to the ‘free trade in ideas,’ along with his concept of ‘clear and present danger’ became not only cultural catchphrases but, in time, the law of the land. Indeed, it is no exaggeration to say that Holmes’ dissent—the most important minority opinion in American legal history—gave birth to the modern era of the First Amendment, in which the freedom to express oneself is our preeminent constitutional value and a defining national trait.”