Across the Atlantic, on the 6th of November, another meeting of some importance convened at 1720 I Street in Washington, D.C. This was the home of U.S. Supreme Court Justice Oliver Wendell Holmes, Jr., and the meeting was in his study. What transpired, however, would never appear in any newspaper and in fact would never have been known to anyone had Justice Holmes not instructed his law clerk to leave the door slightly ajar between his study and the clerk’s adjacent room. The clerk, Stanley Morrison, fresh out of Harvard Law School, told his friend Dean Acheson, who was Louis Brandeis’s law clerk, what he overheard that morning: a judge being pressured but not succumbing. It would impress them both for the rest of their lives.
In November of 1919, Holmes was seventy-eight years old. Appointed by Theodore Roosevelt, he had served on the U.S. Supreme Court for seventeen years. His brethren that year were Justice William Rufus Day, also a Roosevelt appointee; the chief justice, Edward D. White, appointed by Grover Cleveland; Justice Joseph McKenna, appointed by William McKinley; Justices Mahlon Pitney and Willis Van Devanter, appointed by William Howard Taft; and Justices Louis Brandeis, James Clark McReynolds, and John Hessin Clarke, all Woodrow Wilson appointees. In Holmes’s March opinions in the cases of Debs, Schenck, and Frohwork, the Court had affirmed three convictions under the Espionage Act. And in Schenck, the first of the three to be decided, he established what became known as the “clear and present danger” standard for free speech cases.
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic,” Holmes wrote in Schenck. Debs was convicted for obstructing conscription by giving speeches that expressed his opposition to the war. In October, a few days after Harry Weinberger had presented his argument against the harsh sentences in the Abrams case, Holmes wrote a letter to his good friend Harold Laski, which began, “I fear we have less freedom of speech here than they have in England.” And when Justice Clarke—whom the chief justice had chosen to write the Court’s opinion in the Abrams case—distributed to his colleagues what he had written, Holmes indicated he would be writing a dissenting opinion. Brandeis joined him in his dissent.
After Holmes’s three opinions in March, often referred to as the Espionage Act trilogy, his intended dissent must have startled the other justices. Three of them—Justices Van Devanter, Pitney, and another whose name dropped out of the story as it was recalled in later years by friends of Morrison’s—were worried enough that they visited Holmes in his study on the day he was to write the Abrams opinion. Fanny Holmes, the justice’s wife, accompanied them. For the sake of the security of the nation, the justices said, he must sacrifice his own view. Mrs. Holmes agreed with them. They then beseeched him to hark back to his days as a soldier fighting against a common foe. Abrams, Steimer, Lachowsky, and Lipman were the enemy that must be reckoned with. Their severe sentences were deserved because of the threat to the nation their leaflets represented. It was a friendly attempt at persuasion. Holmes responded gently, yet firmly. He could not do as they wished.
Holmes had changed. Something had happened between March and November to cause him to rethink his position on free speech. When his guests left the study that November morning, he closed the door and began to write an opinion that would show just how much he had changed. Rarely, it seems, do individuals in positions of power have the courage to open their minds and face the possibility that they may have been wrong and thus must adjust their course of action. It wasn’t that Holmes had been so wrong; he just hadn’t gotten it exactly right. Realizing that he must modify his view and expand his definition of protected speech in America was a mark of Holmes’s greatness.
The obvious explanation for the change was that Weinberger’s brilliant presentation before the Supreme Court had influenced Holmes. The Founding Fathers clearly intended that “liberty of discussion” was a natural right, Weinberger had stressed. And this right could not be taken away, even, as Holmes had written in March, if the speech or circular contained wording that presented a “clear and present danger” of causing unlawful acts. The unlawful acts could be punished when they occurred, Weinberger said, but the speech could not be censored on the basis of the possibility that it might incite such acts. Speech must be “perfectly unrestrained,” Weinberger argued.
Undoubtedly, the defense attorney’s passionate presentation in October made an impression upon Holmes. But Weinberger was probably not the cause of the groundbreaking dissent that the justice would soon write. Indeed, Holmes had embarked on his intellectual odyssey many months before, almost immediately, in fact, after the March decisions. His remarkable change of attitude evolved out of a series of letters and meetings with astute legal scholars such as Judge Learned Hand of the U.S. Court of Appeals for the Second Circuit, New York, and Felix Frankfurter and Harold Laski. And it was the result of a lengthy reading list of books and articles such as one by University of Chicago law professor Ernst Freund in The New Republic magazine.
At this time in his long life, Holmes, with such stature and brilliance, had attracted what could be called an unofficial fan club in the form of a group of admirers who were at least forty years younger than he and who, representing various professions, shared an ardent interest in one of the biggest questions of the day: just where was the line to be drawn between the guarantee of free speech, as expressed in the First Amendment, and the government’s right to suppress dissident speech? Herbert Croly, the editor of The New Republic, and the journalist Walter Lippmann were among Holmes’s supporters, as were Frankfurter, who then taught at Harvard Law School, Laski, also teaching at Harvard, and the newest arrival to Holmes’s circle, Zechariah Chafée, Jr.
During the summer of 1919, Holmes spent many days at his country house, which stood on a bluff overlooking the ocean at Beverly Farms, Massachusetts. There he immersed himself in legal and philosophical readings on the question of the limits of free speech. Among the articles that drew his attention was one in the June issue of the Harvard Law Review, which Laski, one of the Review’s editors at the time, had sent to him. Entitled “Freedom of Speech in War Time,” it was written by a thirty-four-year-old assistant professor at Harvard Law School, Zechariah Chafée, Jr., who was from an old prominent Rhode Island family descended from the colonist Roger Williams. Laski had read the June article twice and as he told Holmes in a letter, “I’ll go to the stake for every word.” The article called for recognition of the fact that the First Amendment imposed limits on the government’s power to gag the written and spoken expressions of dissidents.
Chafee, a graduate of Brown University and Harvard Law School, was also the author of an article entitled “Freedom of Speech,” which Holmes likely had read in the November 1918 issue of The New Republic. In that one, he had advocated nearly absolute free speech, even in wartime. Free speech, Chafee believed, disseminated information and unless it caused a “direct and dangerous interference with the conduct” of war, then it must be allowed. If freedom of speech was censored in wartime, and if the war was unjust, then how could the people communicate to the government that they believed the war to be unjust? The First Amendment, he believed, was meant to protect the right to criticize the existing form of government, “the kind of criticism which George III’s judges punished.” Chafee wrote another piece for The New Republic in July of 1919 in which he said that “tolerance” was “the tradition handed down to us by Roger Williams and Thomas Jefferson.”
The June article in Harvard Law Review, the one Laski had sent to Beverly Farms that summer, began:
Never in the history of our country, since the Alien and Sedition Laws of 1798, has the meaning of free speech been the subject of such controversy as to-day. Over two hundred prosecutions and other judicial proceedings during the war, involving speeches, newspaper articles, pamphlets, and books, have been followed since the Armistice by a widespread legislative consideration of bills punishing the advocacy of extreme radicalism. It is becoming increasingly important to determine the true limits of freedom of expression, so that speakers and writers may know how much they can properly say and governments may be sure how much they can lawfully and wisely suppress.
And it ended:
Those who gave their lives for freedom would be the last to thank us for throwing aside so lightly the great traditions of our race. Not satisfied to have justice and almost all the people with our cause, we insisted on an artificial unanimity of opinion behind the war. Keen intellectual grasp of the President’s aims by the nation at large was very difficult when the opponents of his idealism ranged unchecked, while the men who urged greater idealism went to prison. In our efforts to silence those who advocated peace without victory, we prevented at the very start that vigorous threshing out of fundamentals which might to-day have saved us from a victory without peace.
Whether Holmes read the article could never be absolutely proven, though Chafee was someone he would have respected for his post at Harvard and for his connection to The New Republic as well as his hard work on the issue of free speech. Considering also that Chafee, in this particular article, discussed at length the Espionage Act trilogy and was critical of Holmes, it seems hardly possible that Holmes did not read it. In late July Laski invited Holmes to tea at Cambridge, which was only a forty-five-minute train ride from Beverly Farms. He wanted Holmes to meet Professor Chafee. Holmes agreed. Felix Frankfurter had introduced Holmes to Laski in such a way, and Laski, the brilliant young English Jew who was an expert in church history, had a photographic memory, and read books as quickly as most people ate lunch, was to introduce Holmes to Chafee, another creative intellectual.
Although Holmes would never have attributed his sea change that summer directly to his readings or to his discussions with the young men in the upcoming generation of legal minds, he was undoubtedly moved by them. At the very least, they impressed upon him the continuing urgency of the issue—mainly its lack of resolution—and gave him ideas to consider in the task of reformulating the meaning of “clear and present danger” and of defining the limits, if any, of speech freedom in a democratic republic.
At the tea in Cambridge, Holmes expressed to Laski and Chafee his belief that the Espionage Act cases on which the court had decided in March should not have been brought to begin with and that if he had been a juror he would have voted to acquit Eugene Debs. But as a judge he must “allow a very wide latitude to Congressional discretion in the carrying on of the war.” Now in the Abrams case, he had the opportunity to narrow that latitude by defining the great scope and strength of the First Amendment. In the previous cases, he had talked of the limits of free speech. Now he would talk of the protections of free speech, showing that he recognized the danger of what he had omitted in his previous rulings.
Holmes was not sympathetic to Abrams, Steimer, Lachowsky, and Lipman. He saw their circulars as trivial and almost silly, calling them “poor and puny anonymities.” This was another case, like the others, that should not have happened. Their threat to America was insignificant. But his dissent in their favor, which was announced on November 10, was nonetheless stunning, groundbreaking, and hugely significant. And while he was heckled and ridiculed by some, especially in elite legal circles of Boston, many more applauded him. They claimed that his words would outlive the current hysteria.
Chafee compared Holmes to John Stuart Mill and John Milton. And those who had lived through 1919, those who knew how endangered the freedoms of their nation had become, and those who had watched people’s lives destroyed for exercising such freedoms, must have nearly wept as they read the words of Holmes:
When 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 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. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against the 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….
I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.
One of Holmes’s biographers later wrote that this dissenting opinion, which charted the legal course for free speech in America from then onward, became one of the “most-quoted justifications for freedom of expression in the English-speaking world.” But when the news hit the papers on the 11th of November in 1919, the dissent in the case of Jacob Abrams was but a footnote. Justice Clarke’s majority opinion was the focus of most of the coverage. The leaflets, wrote Clarke, were “clearly an appeal to the ‘workers’ to arise and put down by force the government of the United States.” And, he said, the defendants had admitted in court that they were “anarchists” and “rebels.”
The Court’s vote was 7–2, with Holmes and Brandeis dissenting “in a few particulars.” The New York Times headline read: “Upholds Sentence of Russian ‘Reds’/Supreme Court Decides Against Four Who Threw Pamphlets from Rooftops.” The New York Tribune noted, “Justice Holmes in his opinion said Congress could not forbid all efforts to change the mind of the country.” Some papers emphasized that the Supreme Court had held that Congress did not exceed its authority in enacting the Espionage Law. “In making the decision,” wrote the New York Call, “the court indicated a strong sentiment in favor of upholding the Department of Justice in its war against radicals.”
Weinberger, though disappointed, was not surprised. He would now step up his campaign for his clients’ deportations, thus sparing them many years in prison. It was his solemn task to inform his defendants that they had lost the case and that they had thirty days to prepare for their twenty years behind bars. Mollie Steimer was already in jail at the workhouse on Blackwell’s Island, serving her six-month sentence for disorderly conduct. Hyman Lachowsky was in detention on Ellis Island, as he was one of the immigrants swept up in the Russian People’s House raid a few days before. Jacob Abrams and Samuel Lipman were free and in New York, but not for long. They had no intention of serving time. After Weinberger contacted them, the two men jumped bail. Three days later, they were renting a room on Canal Street in New Orleans using the names “Mr. Stone” and “Mr. Green” and preparing to leave the United States on a steamer bound for Mexico.