As Brandeis labored in the Washington heat in the summer of 1918, neither the Wilson administration’s demands for advice nor the needs of Zionism prevented him from paying attention to his responsibilities on the Supreme Court. He wrote to Alice, then on Cape Cod, that he was at work revising an opinion, had “started Sutherland on further investigation,” and had another case far enough along to send a draft to the printer. “So you see that the law is not entirely silent amidst arms.”
During World War I, the powers of the federal government expanded enormously, and the irony is that big government came in the administration of Woodrow Wilson, a man who feared strong federal authority. Many wartime measures faced constitutional challenges, but during the conflict the judiciary heard only those cases in which the government needed a quick decision. The Court delayed other matters until after hostilities had ended. If at that time the measure proved constitutional, then its validation simply showed the administration had acted legitimately; if not, its demise would no longer affect the war program.
The administration also wanted to clamp down on dissent. Brandeis initially, albeit doubtfully, went along in approving these laws, but then he and Holmes changed their minds and emerged as champions of free expression. Holmes penned memorable lines, but it would be Brandeis who put together the bases for modern First Amendment jurisprudence. In the process, the names of the two men became in extricably and forever linked.
THE UNITED STATES was ill equipped to go to war in April 1917. Despite the preparedness legislation of 1916, the federal bureaucracy remained small, the army and navy stood on peacetime footings, and cooperation between the government and the private sector was minimal. When Congress declared war, it began enacting legislation that not only strengthened the national government but also impinged on the lives of individuals. All of these laws wound up in court, but the judiciary expedited only one case, that involving military conscription. Both the administration and opponents to the law wanted a swift resolution; men should not be allowed to die should the law be unconstitutional, nor should the government’s mobilization be derailed if it were valid. (The Court unanimously upheld the law.)
Brandeis recognized that fighting a modern war required centralized authority, and in challenges to the draft and other war legislation he voted with the majority of the Court in almost every instance. He spoke for the Court upholding the Wartime Prohibition Act as well as the Volstead Act implementing the Eighteenth Amendment.
During the war the Food Administration had controlled how much grain could go to distillers, but one week after the 11 November 1918 armistice, Wilson signed the Wartime Prohibition Act, which made it illegal to sell alcoholic beverages in the domestic market. The Kentucky Distilleries Company could not market whiskey it had in its warehouses and went to court arguing that since the war had ended, Congress could no longer exercise its war powers. The law, it claimed, was an unconstitutional use of federal police power in violation of the Tenth Amendment.
A unanimous Court upheld the law. As Brandeis explained, although the Tenth Amendment normally conveyed the power to regulate alcohol to the states, Congress had a legitimate interest in maintaining wartime mobilization even though the fighting had ended. Just because hostilities had ceased did not mean that they could not break out again; Congress had the responsibility for ensuring that the country would be prepared if that occurred.
In January 1919 the thirty-sixth state ratified the Eighteenth Amendment, giving both Congress and the states concurrent powers to enforce the prohibition of the manufacture, sale, and transportation of intoxicating beverages. That October, Congress, over Wilson’s veto, passed the Volstead Act, defining an intoxicating beverage as one with 0.5 percent or more alcohol by volume.
The Jacob Ruppert Company, which distilled liquor and beer, claimed that despite the Eighteenth Amendment the Volstead Act was an unconstitutional use of federal power. Moreover, while the Wartime Prohibition Act would remain valid only during wartime, a vague but finite span, the Volstead Act would be in effect indefinitely. It therefore was not a war measure but an invasion of states’ rights. Although four members of the Court—William Rufus Day, Willis Van Devanter, James C. McReynolds, and John H. Clarke—showed themselves more sympathetic to this argument than in the prior case, a majority upheld the law. Under the new amendment, Brandeis explained, Congress needed to establish some definitive standard. He dismissed the company’s claims that 0.5 percent was not intoxicating as irrelevant. That issue did not concern the Court; Congress had made a policy decision, and the judiciary would not second-guess the legislature.
Brandeis’s voting record, however, was not a blanket endorsement of the administration’s program. In the summer of 1916, Congress, as part of its preparedness legislation, had authorized the president to take over the railroads in wartime, and in late December 1917 Wilson, after consulting with Brandeis, did so. Under the terms of the takeover, the government would run the railroads, finance the purchase of new equipment, and compensate the owners for the use of their property. The act did not suspend “the lawful police regulations of the several states,” and allowed the states to continue to tax the railroads.
Director General McAdoo established a rate system that covered intrastate as well as interstate service and, despite the statutory language, had no intention of submitting intrastate schedules to state regulatory agencies. The North Dakota Utilities Commission filed suit to block the action and won a victory in state court, which ruled that the federal government had exceeded its authority under the Commerce Clause. McAdoo appealed, and thirty-seven states joined the suit on behalf of North Dakota.
The Supreme Court unanimously reversed, with Chief Justice White writing a sweeping opinion upholding the authority of the president. In taking over the roads, the chief executive had not been bound by the limits of the Commerce Clause, but operated under the war powers of the United States, which, according to White, reached as far as necessary. The United States had promised to compensate the owners of the railroads, so it had not violated the Takings Clause. Once it assumed operational authority, it also acquired the accompanying power to set rates.
That same day, the Court, this time by an 8–1 vote, upheld the government’s takeover of telegraph, telephone, radio, and marine cable communications systems. The president had put Postmaster General Albert Burleson in charge, and like McAdoo, Burleson established both intrastate and interstate rates. In a series of cases argued together with the North Dakota railroad question, the Supreme Court, again speaking through the chief justice, upheld a broad interpretation of presidential authority.
Brandeis, who a year and a half earlier had advised Woodrow Wilson that he had the power to take over the railroads, did not recuse himself. There would have been no purpose, since his individual vote in these cases did not matter, but he concurred without opinion in the railroad case. In the telephone case, Brandeis dissented, again without an opinion.
The only distinction between the two congressional statutes is that the railroad law explicitly provided the power to set rates, while the communications act, which in most provisions tracked the railroad bill word for word, failed to include rate-making authority. Lacking an explanation from him, we must assume that Brandeis objected not to the government’s takeover of the railroads (which he believed constitutional) but rather to White’s overbroad interpretation of the war powers. In the telephone and telegraph case he would have again found the definition of the war powers too expansive, but also that without explicit rate-making authority, the federal government could set only interstate rates. The distinction, which can be inferred only from the cases, is one that most commentators have found to be meaningless. Congress appeared to have omitted the rate-making power by accident, and if the federal government were to run the telephones as a unified system as it did the railroads, then clearly it required the authority to set intrastate as well as interstate rates. This is how the majority saw it, and White judicially read the rate-making authority into the statute. As one sympathetic study noted, the opinion-less concurrence and dissent were “entirely characteristic” of Brandeis, reflecting his refusal to take shortcuts in order “to get things done.”
IRONICALLY, the war “to make the world safe for democracy” triggered one of the worst invasions of civil liberties in the nation’s history. The government admittedly had to protect itself from subversion, but the laws seemed aimed more at suppressing leftist criticism of administration policy than at ferreting out spies. The Selective Service Act authorized the jailing of people who obstructed the draft. The Espionage Act of 1917, aimed primarily at treason, also punished anyone making or conveying false reports for the benefit of the enemy, seeking to cause disobedience in the armed services, or obstructing recruitment or enlistment in the armed forces. The Trading with the Enemy Act gave the postmaster general power to ban foreign-language and other publications from the mails. The 1918 Sedition Act struck out at a variety of “undesirable” activities and forbade “uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language.” Finally, the Immigration Act of 1918 expanded the government’s authority to deport alien anarchists or those who believed in the use of force to overthrow the government.
All of these laws severely restricted free speech, and there would be court challenges, but those hoping to utilize the First Amendment faced a difficult road. There had been very little jurisprudence about the Speech Clause, and the few cases on record followed Blackstone’s view that free speech meant little more than the absence of prior restraint. While the government could not stop someone from saying or publishing something, it could punish that person afterward, especially if the courts found that the speech had a “bad tendency,” that is, it fostered undesirable actions or behavior. Between the Civil War and World War I, both state and federal courts rejected free-speech claims or ignored them, and no court seemed more unsympathetic than the U.S. Supreme Court.
Holmes had written the leading opinion on speech in Patterson v. Colorado (1907), a case in which the Democratic senator and newspaper publisher Thomas Patterson had been convicted of contempt for a series of editorials, stories, and cartoons ridiculing the Republican-dominated state supreme court. Under state law, Patterson could not even offer the truth of his accusations as a defense, because any criticism of the court amounted to an obstruction of justice. He appealed to the Supreme Court, claiming that the state courts had restricted his constitutional right to free expression by denying him the opportunity to prove the truthfulness of his allegations.
Speaking for a seven-man majority, Holmes upheld the conviction, relying primarily on Blackstone’s view that the truth or falsity of the statement had nothing to do with criminal libel—”the provocation [that is, the bad tendency] and not the falsity is the thing to be punished criminally.” Holmes broke no new ground here and did little more than reiterate that states had the power to punish bad tendencies in speech. This violated no federal rule, and so he dismissed the case. In 1915, Holmes again spoke for the Court in sustaining the constitutionality of a law punishing speech that had a tendency to encourage the commission of a crime, but he made no effort to see if there had been any actual consequences of the speaker’s words. These rules constituted the Court’s position when it began to hear cases arising from the wartime laws.
The first case to reach the high court involved the conviction of Charles Schenck, general secretary of the Socialist Party, for printing and distributing a leaflet attacking the draft. He mailed the article to men eligible for conscription, urging them to assert their constitutional rights by refusing to go into the army. Its “impassioned language,” wrote Holmes for a unanimous Court, “intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few.”
But what about the First Amendment and its protection of speech? Holmes went on to draw what many people considered a commonsense conclusion, namely, that while this activity might have been legal in peacetime, war changed everything. “The character of every act depends upon the circumstances in which it is done, and when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.”
In order for courts to evaluate the speech, Holmes set forth the “clear and present danger” test: “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” The clear-and-present-danger test quickly became the established standard by which courts would judge free-speech tests for the next half century, and immediately raised objections from free-speech advocates who recognized its subjectivity. In the hands of conservatives almost anything that even questioned the established order or criticized the free enterprise system could be considered clearly and presently dangerous. Holmes thought the statement so obvious that he never defined what he meant by “clear” or “present” or “danger.” Nonetheless, the Court applied this test in two other cases that term, Frohwerk v. United States and Debs v. United States. Brandeis joined the Court’s opinion in each case, although he would have been happier if Debs had been decided on war powers rather than on clear-and-present danger, since that could have restricted the espionage legislation to wartime. He also wrote for a unanimous Court in a companion case, Sugarman v. United States, decided the same day as Schenck, dismissing a challenge to the Espionage Act for lack of juris diction. Brandeis paid no attention to the First Amendment issues; the case had not raised any substantial constitutional issues at the trial level, and therefore the high court had no authority to review.
“I have never been quite happy about my concurrence,” he later told Felix Frankfurter. “I had not then thought the issues of freedom of speech out—I thought at the subject, not through it.” “Thinking at” the issue would have meant relying on the state of First Amendment jurisprudence in 1919, a far cry from what it later became, thanks in very large measure to Brandeis himself.
Brandeis had written his first speech opinion a year earlier in International News Service v. Associated Press, which raised the question of whether a property right existed in news. The AP ran a wire service to subscribing newspapers providing news stories from around the country and from many foreign capitals, an essential service to the vast majority of papers that could not afford to maintain correspondents far from home. The INS, which did not have as extensive a system of reporters, pirated the stories from the AP and sold them to its subscribers at a lower price. Since news cannot be copyrighted, the AP claimed that its stories constituted a property right and sought an injunction to stop what it labeled an unfair trade practice.
Justice Mahlon Pitney, speaking for the Court, ignored any First Amendment questions or whether the public had any rights in the news, accepted the AP argument, and treated news as a property interest. “The right to acquire property by honest labor or the conduct of a lawful business,” he declared, “is as much entitled to protection as the right to guard property already acquired.”
Holmes apparently would have gone along with Pitney until he read a circulation of Brandeis’s dissent, and the approaches the two men took reflected the differences between them. Holmes, joined by Joseph McKenna, entered a special opinion that in effect dissented from the majority view. He had difficulty in finding a property right in news, but recognized that the INS had acted badly, and would have solved the problem by sending the case back to the trial court with instructions to determine a number of hours during which the INS would not be allowed to circulate the stories originally carried by the AP. In the absence of specific legislation, both the majority and Holmes favored a judicial resolution; they stood ready to act.
Brandeis dissented by himself. The majority rule making news property “would effect an important extension of property rights and a corresponding curtailment of the free use of knowledge and of ideas.” His opinion, however, centered not on the public’s right to know but rather on the fact that the courts should defer to the legislative branch in making policy. “Courts are ill-equipped to make the investigations which should precede a determination” of what should be included in this new property right, and are also “powerless to prescribe the detailed regulations essential to the full enjoyment for enforcement of such regulations.” A remedy was certainly necessary, but Congress and not the Court should provide the solution.
Initially, Pitney’s opinion, one of his best, received widespread approval, and some commentators described it as a fine example of progressivism in the law, reflecting the Court’s adaptability in meeting new conditions—exactly what Brandeis had been calling for courts to do. But whereas the majority and Holmes focused on the problem of unlawful appropriation, Brandeis looked at the broader issue—one that would concern him the entire time he sat on the bench—of federal courts creating common law. He saw courts limited in their powers by the Constitution, in the same way the document also restricted the powers of the executive and legislative branches. Over time, the law moved in the direction Brandeis had pointed, and while Pitney’s notion of fairness remained attractive, the majority opinion lost its force and judges looked to the dissent for guidance.
THE COURT DECIDED Schenck and its companion cases in the spring of 1919, and that fall handed down a decision in Abrams v. United States. Jacob Abrams and his anarchist colleagues had been convicted for publishing leaflets in English and Yiddish calling for a general strike in protest against what they called the American attempt to destroy the Russian Revolution. Writing for a seven-man majority in a poorly reasoned opinion, Justice John Clarke dismissed the free-speech claim as taken care of by Schenck, applied the clear-and-present-danger test, and upheld the conviction. Holmes dissented, joined by Brandeis.
It remains one of Holmes’s most famous dissents and still resonates as a call for intellectual freedom. It is a typical Holmes opinion, running just twelve paragraphs. The first ten recount the various charges and conclude that none of the actions complained of posed any threat to society or the state. He had no use for the ideas that Abrams and others put forth, but they posed no danger, and their beliefs—as opposed to their actions, of which there had been none—should never be taken into consideration.
The First Amendment supported the free exchange of ideas, not their suppression. “When men have realized that time has upset many fighting faiths, they may come to believe … 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 may be safely carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.” On the return Brandeis wrote, “I join you heartily & gratefully. This is fine—very.”
Jacob Abrams and his wife, Mary, just before he entered prison in 1919
What had changed their minds? Scholars have offered several reasons, although it appears that no single factor led to the about-face. Holmes met Learned Hand on a train, and the two men began a correspondence debating the meaning of the First Amendment. Hand had earlier delivered a far more speech-protective decision in the Masses case that libertarians had applauded. Progressive magazines like the Nation and the New Republic carried articles criticizing the initial decisions. In June 1919 the Harvard Law Review published Zechariah Chafee’s “Freedom of Speech in Wartime,” the first part of what would be his classic treatise on free speech in the United States. Holmes read that article, and so did Brandeis, who would cite it in a 1920 dissent. Harold Laski arranged a meeting between Holmes and Chafee, and the justice, who had been stung by the unexpected criticism of his Schenck decision, listened carefully.
Brandeis also learned about the suppression of speech through dozens of letters he received from correspondents. Felix Frankfurter wrote to him from Bisbee, Arizona, to describe how mine owners violated the civil rights of striking workers under the guise of patriotism. Amos Pinchot wanted Brandeis to intervene with the Justice Department to stop the prosecution of the editors of the Masses. A former neighbor and a lecturer at Harvard, Samuel Eliot Morison, told Brandeis he had been charged with disloyalty and wanted help in securing an investigation to clear his name. Two of the very few federal judges not to be carried away by the mass hysteria wrote to tell him of the evils of Espionage Act prosecutions. Brandeis also kept an extensive clippings file of items from both the general and the trade presses, which detailed the attacks on labor leaders and pacifists. Even without Chafee’s intercession, Brandeis knew about the Wilson administration’s violations of civil liberties. Since he was not about to admit that he had been wrong only a few months earlier, Holmes went out of his way to explain that the clear-and-present-danger test meant “immediate danger” or “a clear and imminent danger,” and he began to pay more attention to the ideas implicit in the First Amendment. He undoubtedly consulted with Brandeis, who alone of all the members of the Court joined his dissent. In the remaining two speech cases of the term, Brandeis wrote the opinions, joined by Holmes, and in doing so moved well beyond his colleague in terms of speech protectiveness.
Judge Learned Hand, 1924
DURING THIS TIME the hysteria generated by the so-called First Red Scare appalled both men. Beginning in the late nineteenth century, socialist and anarchist groups had protested, sometimes violently, against the evils of the industrial system and the way it treated working people. During the war a number of these groups objected to American entry into what they described as a battle of, by, and for the capitalists against the people. Then came the Russian Revolution and the victory of the communists. In the United States the chaotic demobilization after the armistice and the ensuing recession led some four million workers to go out on strike in 1919. More than sixty thousand heeded a call for a general strike in Seattle, which Mayor Ole Hanson denounced as a Bolshevik plot. The four-month strike in the steel mills certainly had its share of radicals among the strike leaders, and in early September most of Boston’s police force walked off the job. In April the Justice Department uncovered a plot to mail thirty-six bombs to prominent Americans, including J. P. Morgan Jr., John D. Rockefeller, and, for some strange reason, Oliver Wendell Holmes Jr. On 2 June, bombs did in fact explode in eight different cities within the same hour.
These events triggered an unparalleled wave of antiradical and anti-immigrant hysteria. Attorney General A. Mitchell Palmer (who had replaced Thomas Gregory) initiated what came to be known as the Palmer Raids, a series of mass arrests and deportations of immigrants suspected of radicalism. Over a two-year period the government, under the direction of the young J. Edgar Hoover, arrested between four thousand and ten thousand individuals, held them without access to lawyers, and deported many of them without even a minimal facade of due process. The Washington Post praised the raids and proclaimed, “There is no time to waste on hairsplitting over infringement of liberty.”
Eventually, calmer heads prevailed, and as the tensions lessened, Palmer, who hoped to capture the 1920 Democratic presidential nomination, warned of a new wave of bombings that would take place on May Day. The day came and went without incident, Palmer was widely ridiculed, and the Red Scare collapsed. Brandeis, writing to his sister-in-law, compared events to the Spanish Inquisition. “The intensity of the frenzy is the most hopeful feature of this disgraceful exhibition—of hysterical, unintelligent fear—which is quite foreign to the generous American nature. It will pass like the Know-nothing days, but the sense of shame and sin should endure.” When his law clerk asked him whether the police harassment of labor activists and socialists lessened his hopes for democracy in America, the justice said he was not discouraged, but “simply deeply humiliated and filled with a sense of sin that we with the greatest possibilities of any people should waste ourselves on these age-old methods of oppression.”
One incident of the Red Scare touched Brandeis in particular, the attack on Zechariah Chafee, his young friend at Harvard Law. The scion of a wealthy Rhode Island industrial family, Chafee had written a series of articles in the Harvard Law Review attacking the Court’s decisions in the speech cases and applauding Holmes’s dissent in Abrams. In addition, he had joined with Felix Frankfurter in criticizing Palmer and asking President Wilson for clemency for Abrams and others convicted under the sedition and espionage laws.
Because Frankfurter and other faculty supported the rights of labor and free speech, conservatives began assailing the law school, much to Brandeis’s chagrin. When Dean Roscoe Pound wrote to him about these attacks and said that he was considering resigning, Brandeis urged him to stay and asked him not to make any decisions until they had a chance to talk. “To lose you as a teacher of law and of lawyers would be a calamity.” They are “gunning hard for Felix,” Louis wrote to Alice. “Old Boston is unregenerate…. F.F. is evidently considered by the elect as ‘dangerous’ as I was.” After further harassment of Pound, Brandeis wrote again. He and Holmes believed the assault on the law school “the saddest thing” they had heard in a long while, and they applauded Pound’s decision to fight back.
When the attack on Pound failed, conservative alumni decided to move against Chafee. Austen Fox, who had been one of the leading opponents of Brandeis in 1916, and twenty other alumni asked the Harvard Board of Overseers to investigate Chafee’s “fitness to teach,” on the grounds that his articles included “deliberate falsehoods” and “reckless indifference to the truth.” The overseers, instead of dismissing the ludicrous charges outright, appointed a special committee. At the hearings Chafee acquitted himself brilliantly and, when reminded that he came from the capitalist class, said that was true, but that he wanted his side to fight fairly. The committee absolved Chafee of all charges, but by a bare 6–5 vote.
A thoroughly dispirited Chafee thought about resigning, but Holmes and Brandeis reassured him that the fight had been worthwhile. “Word comes of the attack on you for daring to be free,” Brandeis wrote to Chafee. “You did a man’s job. The persecution will make it more productive. By such follies is liberty made to grow; for the love of it is re-awakened. Of course there are growing pains; but with these come also the joys of the struggle and of creation.” The incident “illustrates the value of a law school professorship—as a fulcrum in efforts to improve the law and through it society.” The justice expressed his certainty that Chafee could be of infinitely more use in the law school than in private practice.
IT IS AGAINST THIS BACKGROUND that Brandeis had been “thinking through” the basic ideas of free speech. Holmes’s marketplace of ideas, while attractive to the idealist as a theory, did not satisfy him from a pragmatic stance. If clear-and-present danger allowed too much subjectivity on the part of judges and juries, the marketplace analogy gave lower courts no guidance in establishing parameters of First Amendment protection. Brandeis began working on that problem in the series of dissents he wrote in the 1920s, culminating in the great concurring opinion in Whitney v. California in 1927. He did so the same way he had argued economic cases, by grounding his position in facts. “I made up my mind I would put it all out,” he told Frankfurter, and “let the future know what we weren’t allowed to say in the days of the war and following.” A person might disagree with him about the scope of free speech, but no one would be able to say that he got his facts wrong. And as in all his opinions, he believed if the facts were right, it would be difficult to go against his conclusions. “Knowledge is essential for understanding,” he wrote in a 1924 dissent, “and understanding should precede judging.” Of course, facts could always be found to support either side of an issue; once Brandeis made up his mind, he would utilize every fact that would support his position. He knew that “facts” were rarely as objective as he sometimes claimed.
Peter Schaefer and his co-defendants edited small German-language newspapers in Philadelphia, for which they reprinted or rewrote articles that appeared elsewhere. They had been prosecuted under the falsity provision of the Espionage Act, but the government had never proved that anything they published had been false, only that certain of the articles they printed differed in some respect from their original form. The government had secured a conviction on these grounds, and the Court, speaking through Justice McKenna, upheld the verdict.
Brandeis analyzed four of the reprinted articles, and in his usual thorough way went and read both the original German pieces and those published by Schaefer. He discovered that one charge of falsity resulted from an error by the government translator of the original German piece; other charges rested on the omission of a single sentence in the reprint and the mistranslation of “breadlines” as “breadriots.” In the Espionage Act, he contended, Congress had meant to punish only those false statements that might “interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies.”
The articles published by the defendants were not false, and the mistranslation of one word in a long passage could not possibly have interfered with the war. Brandeis categorized the other articles as “likewise impotent to produce the evil against which the statute aimed.” One of the articles from a Berlin newspaper resembled those circulated by patriotic societies in the United States to arouse “American fighting spirit,” and its “coarse and heavy humor” could in no way be considered an obstruction to recruitment. Suppressing publications on such flimsy grounds, Brandeis concluded, “would subject to new perils the constitutional liberty of the press.”
In Schaefer, Brandeis maintained that the government’s grounds for prosecution had been so fragile that they could not support a conviction, and certainly did not present a clear-and-present danger to anything. In the second 1920 case, Pierce v. United States, Brandeis moved closer to a modern understanding of the meaning of the Press Clause and free speech.
Clinton Pierce circulated a four-page leaflet, “The Price We Pay,” written by a prominent Episcopalian clergyman who charged the war had been started by the capitalists. He and the other defendants received the leaflet from Socialist Party headquarters, but did not distribute it until a Maryland judge ordered an acquittal in a case involving the same pamphlet. Pierce, like Schaefer, was convicted under the falsity provisions of the Espionage Act. Justice Pitney rejected the defendants’ claim that the pamphlet’s sole purpose had been to recruit members for the Socialist Party, and found the jury could have determined that the document had been intended to interfere with the war.
Brandeis argued that to punish a person for a false statement, the government had to prove the passage to be false in fact and that the defendant had known its falsity at the time of publication or utterance. But an expression of opinion can never be proved false, because the accuracy of an opinion is indeterminate. No matter how “grossly unfair as an interpretation of facts or even wholly unfounded in fact,” an opinion represented what a person believed, and that could not be criminalized.
Brandeis and his clerk found the one precedent that supported this distinction, in which the Court had held that claims by Christian Scientists are “mere matters of opinion upon subjects which are not capable of proof as to their falsity.” The roots of a war can rarely be identified in a specific manner, Brandeis asserted, and even historians, with all the benefits of training and hindsight, could not agree on either the identity or the importance of specific events in causing a war; laymen, discussing a contemporary war, could hardly be expected to do better than historians. Moreover, at the time Woodrow Wilson had asked for a declaration of war, a number of senators and congressmen disagreed with the president’s justification and expressed many of the views for which the defendants had been prosecuted. If such statements were indeed criminally false, Brandeis implied, then a number of high-ranking government officials ought to be in the dock alongside Pierce.
The intent of the leaflet had clearly been to promote socialism. It did contain “lurid and perhaps exaggerated” descriptions of war’s horrors, and one could characterize its arguments as “shallow and grossly unfair.” Nothing in the leaflet, however, could in any way be construed as criminal incitement to disobey the law. The fact that judges might have interpreted the pamphlet as “mistaken in its assumptions, unsound in reasoning or intemperate in language” did not make it a violation of the law. To show this, and to counter the majority’s claim that it was a dangerous document, Brandeis published the whole of the pamphlet at the end of his dissent.
In Schaefer and Pierce, Brandeis wanted to extend the protection of the First Amendment and yet avoid rejecting Holmes’s clear-and-present-danger test. Holmes had gone out of his way in Abrams to “clarify” what he meant in such a way as to protect speech, but had been unable to say that he had been wrong in Schenck. Because Holmes was his natural ally on the Court as well as his friend, Brandeis would have to play that game as well. In his Schaefer dissent he described clear-and-present danger, adopted by a “unanimous court” in Schenck, as a “rule of reason” that required judges to apply it in “calmness” and using “good judgment.” He then added two other qualifications, immediacy and gravity.
The danger could not be theoretical or remote or merely possible, but it had to be about to happen, and for this he cited not a case but Zechariah Chafee’s article in the Harvard Law Review. He also tightened the test by utilizing Judge Learned Hand’s notion of direct incitement. The speech complained about had to pose an immediate danger and also constitute the proximate cause of that danger. Speech that merely discussed violence but did not call for it in a specific circumstance could not be deemed a danger. Finally, Brandeis added the rule of gravity; the feared action could not be trivial, and even potential destruction of property or trespass did not qualify. The danger had to be the “probability of serious injury to the State.”
One function of the Supreme Court is to provide guidance to lower courts, and Brandeis tried to do what he had always done as an advocate and would continue to do on the high court—instruct the judiciary. While external evidence—such as the existence of a conspiracy—may be necessary to create a context, the judge had to read the material itself. What are “the nature of the words used and the circumstances under which they were used”? Perhaps most important, the words had to be evaluated calmly. By these standards, freedom of speech would be the rule, and restrictions based on clear-and-present danger would be the exception.
Letter applauding Chafee’s defense of free speech, May 1921
IN THE THIRD SPEECH case of 1920, Brandeis dissented alone and showed how far he had moved past Holmes, who some commentators believed never really advanced beyond his Abrams opinion. Joseph Gilbert, a leader of the Minnesota Nonpartisan League, had been arrested and convicted under a state statute that prohibited interference with military recruiting. He had given a speech charging that the average person knew nothing about why the country had declared war or why there had to be a draft. In a true democracy, he claimed, the people would have voted on whether to go to war and if there should be conscription.
In the Supreme Court, Gilbert’s attorneys made two points: the state law violated freedom of speech and also trespassed unconstitutionally on grounds preempted by the federal government. Justice McKenna made short shrift of both arguments. Nothing the federal government did precluded states from acting to preserve public order; as for the speech itself, he cited the three 1919 cases establishing the clear-and-present-danger test. Chief Justice White briefly dissented from the war powers conclusion, while Holmes silently joined the majority. Only Brandeis dissented.
McKenna had made war powers the crux of his opinion, believing that the Court had no jurisdiction over state measures that restricted speech. Brandeis quickly dismissed this argument; if a measure related to war, then only the federal government and not the states could act. He spent the bulk of his dissent on speech. Unlike the federal Espionage Act, the Minnesota statute applied in peacetime as well as during war, and was designed to “prevent teaching that the abolition of war is possible.” Repeating an earlier warning from Schaefer, Brandeis contended that allowing suppression of speech in wartime only made it easier to restrict free expression afterward. The law made the teaching of pacifism itself illegal and therefore “Father and mother may not follow the promptings of religious belief, of conscience or of conviction, and teach son and daughter the doctrine of pacifism.”
Despite the “judicial” language he used, there is no doubt of Brandeis’s anger in this case, an anger that led him to invoke the Fourteenth Amendment’s Due Process Clause as justification for protecting the right of a parent to teach a child and of a free man to speak his mind. Referring to the many times that the Due Process Clause had been used to strike down economic regulations, he vehemently declared:
I have difficulty in believing that the liberty guaranteed by the Constitution, which has been held to protect the right of an employer to discriminate against a workman because he is a member of a trade union, the right of a businessman to conduct a private employment agency, or to contract outside the state for insurance of his property, although the Legislature deems it inimical to the public welfare, does not include liberty to teach, either in the privacy of the home or publicly, the doctrine of pacifism…. I cannot believe that the liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and enjoy property.
Brandeis, of course, had never believed that the Court should have used the Due Process Clause to strike down the other laws, and he later regretted that he had tried to utilize it as a basis for free expression here. He would much prefer, he told Frankfurter, to repeal the clause altogether. But if his more conservative brethren intended to use the clause to protect property rights, then they ought to be willing to use it to protect other rights as well, and he included such basic rights as speech, education, choice of profession, and travel.
Holmes and Brandeis, early 1920s
The Gilbert dissent, however, is an important milestone in the history of modern jurisprudence. Brandeis’s suggestion that the Fourteenth Amendment could be used to protect other rights soon found an unlikely champion in James Clark McReynolds, who used exactly this argument in two important rights cases just a few years later. More important, the opinion led to the doctrine of incorporation, which would be at the very heart of the rights revolution in the 1950s and 1960s. Ever since the 1833 case Barron v. Baltimore, the Bill of Rights had been held applicable only to the federal government (“Congress shall make no law …”) and not to the states. The Fourteenth Amendment, and especially its Due Process and Equal Protection clauses, had been intended to rein in state power following the Civil War, and from time to time the argument had been raised that the Due Process Clause “incorporated” the Bill of Rights and applied it to the states. Brandeis’s claim that it did so would start bearing fruit in only a few years.
Beyond that, Brandeis took an important step in Gilbert toward identifying an intellectual rationale for free speech in a democracy. In Schaefer and Pierce he had shown himself sensitive to protecting free expression, but had not explained the importance of doing so. A free marketplace of ideas is very well for a philosopher, but how, if at all, did it apply to the daily life of a citizen?
A citizen, he explained, cannot participate in the affairs of a democratic society without the right of free speech, and he has a corresponding duty to speak out on matters of importance, “to endeavor to make his own opinion concerning laws existing or contemplated prevail, and to this end, to teach the truth as he sees it.” Therefore, the exercise of the right of free speech is also a citizen’s duty, “for its exercise is more important to the nation than to himself…. In frank expression of conflicting opinion lies the greatest promise of wisdom in governmental action; and in suppression lies ordinarily the greatest peril.” This theme would reach its full elaboration seven years later in Whitney v. California.
Holmes in this case could not go along with Brandeis (on the return he wrote, “I think you go too far”), even though, as he wrote to Sir Frederick Pollock, he “heartily disagreed with the reasoning of the majority.” Brandeis had only one ground “worthy of serious consideration and the others I thought all wrong.” The one ground may have been the preemption of state action by the national government, and Brandeis did cite a recent Holmes decision that states could not act regarding limitation of postal service because of federal primacy. Holmes may have objected to the new—and radical—idea that the Fourteenth Amendment limited state action, a step that the full Court would not take for another five years.
Zechariah Chafee, however, read the Gilbert dissent with great approval. The Harvard Law professor had expanded his original articles into a book, Freedom of Speech, and sent proofs of the early chapters to Brandeis, who clearly had studied them closely. After the opinion came out, Brandeis sent a copy to Frankfurter, asking him to “tell me frankly whether you or Chaffee [sic] see any flaw in the reasoning in the dissent.” To Chafee must go some of the credit in helping Brandeis down the jurisprudential road.
IN PIERCE, Brandeis had criticized postal authorities for going beyond their authorized power in curtailing speech. He returned to this issue in the Milwaukee Leader case in 1921.
Among the members of Wilson’s original cabinet, two stood out for their archconservative views, Attorney General James Clark McReynolds and Postmaster General Albert Sidney Burleson. The full extent of McReynolds’s conservatism would emerge after he went onto the high court, that of Burleson during the war. Described by Colonel House as the most “belligerent member” of the cabinet, Burleson used his authority to block mailings of any publication he deemed subversive. When asked about his standards for allowable comment, he replied that it was impermissible to say “that this Government got in the war wrong, that it is in for the wrong purposes, or anything that will impugn the motives of the Government for going into the war,” or that “the Government is controlled by Wall Street or munitions manufacturers,” or even to criticize the Allies “improperly.” When the Milwaukee Leader did raise such questions, Burleson revoked its second-class mailing privileges.
The paper went to court, but to no avail, and on appeal the Supreme Court upheld Burleson’s actions in an intemperate opinion by Justice Clarke. Brandeis dissented, and once again raised the due process argument he had used in Gilbert—which led Holmes, “after fasting and prayer,” to enter a short dissent of his own rather than joining—but also raised another issue that should have won support from other members of the Court. Even if the postmaster general had the power under the Espionage Act to ban particular issues of a journal because of allegedly subversive articles, he did not have the power to ban future numbers. Yet that is exactly what happened when Burleson revoked the mailing privilege, and this amounted to prior restraint, a clear violation of the Blackstonean view on speech that the Court had endorsed in the past. Moreover, in the Associated Press case the Court had held news to be a property interest, and Brandeis reminded them that a law that arbitrarily denied publishers the low second-class rates deprived them of their property without due process of law. Even though the fighting had stopped more than two years before the Court heard this case, the hysteria generated by the war continued, even among the justices.
That fall Dean Acheson joined the Brandeises for Thanksgiving dinner, and, as he told Frankfurter, “himself” was in excellent form. After the justice had expounded on the evils that were going to overtake the press in the wake of the Milwaukee Leader case, Acheson suggested that perhaps liberals were rather “unsympathetic with people justifiably scared to death,” only to earn a lecture on the evils of sympathizing with fear. (That evening Brandeis also had little use for the French, then trying to renegotiate terms of their wartime loans, and the justice condemned them as “a wretched greedy lot at best.” Acheson said he was somewhat tempted to discuss French contributions to civilization at the end of the eighteenth century, “but I knew he would floor me by quoting their export statistics for the same years, so I gave it up.”)
IN FEBRUARY 1928, Oliver Wendell Holmes wrote to his friend the English legal scholar Sir Frederick Pollock, noting that Brandeis had dissented from one of his opinions. “We are so apt to agree that I am glad that he dissents…. It will indicate that there is no preestablished harmony between us.” Holmes took pains to point this out because he recognized that many people believed that Brandeis had a great sway over him. Chief Justice William Howard Taft, for example, complained to Henry Stimson that Holmes was “so completely under the control of Brother Brandeis that it gives to Brandeis two votes instead of one.” Holmes knew of these views, and at times they irked him. He told an old friend, Nina Gray, that some thought him “under the influence of the Heb. I am comfortably confident that I am under no influence except that of thoughts and insights. Sometimes my brother B. seems to me to see deeper than some of the others—and we often agree.” He went on to argue that in many areas, especially free speech, he had reached his conclusions independently. “In two or three cases he has perhaps turned the scale on the question whether I should write—but in each of those I was and am more than glad that I did.”
Brandeis did have an impact on Holmes, just as Holmes had for so many years affected his thought. The two men differed on many issues, most importantly on how they faced life and law, but they also had a deep affection for each other, and in the sixteen years they served together, their ideas and philosophies proved complementary. Al though liberals rejoiced when they saw “Holmes and Brandeis dissenting,” very few recognized that Holmes’s soaring rhetoric and Brandeis’s inexorable fact-laden logic arose from different worldviews.
The two men had known each other from the time Brandeis came to Boston to join Sam Warren, who introduced them. Brandeis sat in the audience at the Lowell Institute when Holmes delivered his lectures on the common law. When Brandeis came to Washington, he would often visit Holmes, and during the nomination fight said that he shared Holmes’s view of the Constitution. Holmes, who so valued the mind, regarded Brandeis as far superior in intellectual power and ability to any of the other men he served with.
Affection was there from the start. Once Holmes, beset by a cold, did not attend the weekly conference, and Brandeis reported that it “seemed dreary without him.” Brandeis told Harold Laski that he considered Holmes’s companionship “the crown of his life.” “I have had one or two good talks with Brandeis,” Holmes told Frankfurter. “They always rejoice me.” The two men often walked home together after work and would then go through a routine. Brandeis would insist on taking Holmes to his door, and then Holmes would worry whether Brandeis would find his way back across the street. Even with the Court in recess Brandeis made it a point to see Holmes often. “Brandeis has delighted me by an occasional call during the adjournment,” Holmes reported. “I am richer after a talk with him.” On their birthdays the two men would exchange brief notes. In 1930, for example, Brandeis passed a note down the bench calling 8 March “a red white & blue letter day for U.S.A. and L.D.B.” On Brandeis’s seventieth birthday Holmes told a friend that Brandeis “has done great work and I believe with high motives.” When Holmes wrote an introduction to a book of essays celebrating Brandeis’s seventy-fifth birthday, it touched him greatly and, according to Alice, was “the crowning point of it all.”
As the years went on, Brandeis took greater efforts to keep an eye on the aging Holmes, whose mind remained sharp despite growing physical infirmity. “There can’t be too much apprehension about evil effects of old age,” Brandeis told Frankfurter in 1922, and said that John Marshall and Joseph Story both outlived their usefulness because of a failure to grow. This could not be said of Holmes, whose mind seemed to improve with the years. Eventually, of course, age did begin to tell on Holmes, especially when his wife of sixty years fell ill. Ten days before the death of Fanny Holmes, Brandeis wrote to Frankfurter that Holmes’s current secretary should plan to stay with him over the summer at Beverly Farms. “He is needed,” Brandeis said, “as no secretary ever has been.”
After Holmes retired from the bench, Brandeis visited him at least once a week. Holmes’s housekeeper, Mary Donnellan, recalled that when she would tell Holmes that Brandeis was on his way, “he would get awfully excited. I would take Justice Brandeis up in the elevator to the library where Justice Holmes was seated in his big chair. He was awfully weak and frail by this point. But when Justice Brandeis walked in the room, Justice Holmes would lift himself up, and he would smile broadly and say, ‘My dear friend,’ and the two of them would embrace.”
BECAUSE THEY AGREED on so many things, their differences received little attention at the time. In cases that mattered to liberals, only Holmes and Brandeis could be counted upon to vote for reforms and rights. Both men believed in judicial restraint, but Holmes voted as he did out of skepticism, not believing in the reforms or, other than as an intellectual matter, in the rights either. Brandeis, even when he disagreed with a policy, believed fervently that the people should make policy through their elected representatives, and he valued rights, especially speech, as essential components of a free society. Above all, Brandeis cherished facts, while Holmes hated them.
“Brandeis the other day drove a harpoon into my midriff with reference to my summer occupations,” Holmes complained to Sir Frederick Pollock. “He said you talk about improving your mind, you only exercise it on the subjects with which you are familiar. Why don’t you try something new, study some domain of fact.” Brandeis wanted Holmes to study factory reports and then take a trip to the Lawrence mills to get a sense of what these facts meant in terms of human lives. Although Holmes dutifully carried a few volumes with him to his summer home in 1919, he could not really get into them, and resented the time taken away from his Greek poets. The next summer he gratefully confessed, “In consideration of my age and moral infirmities, [Brandeis] absolved me from facts for the vacation and allowed me my customary sport with ideas.”
Holmes preferred the abstract and never made any pretext otherwise, but admired Brandeis and understood his need for details. He “is the most thorough of men. If I wanted to be epigrammatic I should say that he always desires to know all that can be known about a case whereas I am afraid that I wish to know as little as I can safely go on. He loves facts and I hate them except as the necessary peg to hang generalizations on. Think not that I don’t appreciate the power his knowledge gives him.”
Holmes never completely reconciled himself to Brandeis’s heavily annotated opinions, or the use of nonjudicial materials as sources. “I can’t think it good form to treat an opinion as an essay and put in footnotes” from so many sources, he complained. (Holmes once circulated an opinion that included a quotation from Byron—to “pain the boys,” as he put it—and the first objection came in Brandeis’s return. Law reviews were one thing, English poets quite another!) “I don’t believe in long opinions,” he told a friend. He thought a judge should “state the case shortly and the ground of decision as concisely and as delicately as you can.” He took as part of his charge the necessity to write his opinions quickly and, if at all possible, deliver them the following week.
To some extent the difference between the two came out of their far different backgrounds. The Brahmin Holmes, after his experience in the Civil War, had devoted himself to ideas, and seven decades after his death is still considered one of the greatest philosophers in American law. Although his vanity led him to care deeply about what people thought about him, he believed that lasting fame, if any came to him, would be because of the impact of his ideas. If we look at those ideas, we find in them a far different moral universe from that of Louis Brandeis.
Holmes’s reputation has over the years seesawed from near idolization to near dismissal, as later generations of scholars have assessed his writings with the hindsight of history. His marvelously quotable opinions turned out to be more worthwhile as literary gems than as guides for future jurisprudence, something that Brandeis recognized at the time. “Holmes is more often quoted by lawyers,” Brandeis told Felix Frankfurter in 1922, “but also leaves more loopholes for rehearing petitions than anyone else; he disregards some little fact or doesn’t spell it out.” Despite the justifiable literary fame of the Abrams dissent, it speaks primarily from the viewpoint of the theorist, the thinker who values the marketplace of ideas far above whatever practicalities may result from new thought. Holmes, Brandeis said, did not “sufficiently consider the needs of others to understand.”
Part of the greatness of Holmes’s lectures on the common law is that he dislodged morality as the guiding star in civil law. Early law writers condemned breach of contract as a moral transgression; Holmes argued that in terms of business a breach sometimes made sense. Moreover, the other party should only be made whole again, that is, put back in the position he would have been had the contract been fulfilled; he could not sue for nor should he receive punitive damages. Holmes’s view of the rights of man, despite the high-flown rhetoric of some of his opinions, never developed beyond “what the crowd would fight for.” His own morality consisted of what he called his “can’t helps,” those things that he intuitively followed.
Brandeis, in contrast, saw law as a surrogate for religion in establishing and preserving morality. An incident recounted by Dean Acheson illuminates this point perfectly.
Brandeis always welcomed visits from Harvard Law faculty whenever they happened to be in Washington, and on one occasion Manley O. Hudson came to see him. As he usually did, the justice asked his visitor about his current project, and Hudson started to talk about his work with the League of Nations. In international law, Hudson declared, even more so than in domestic matters, “moral principles were no more than generalizations from the mores or accepted notions of a particular time or place.” There followed a “spectacular” eruption as Brandeis began, in Acheson’s words, to “prophesy.” Morality was truth, he declared, and “truth had been revealed to men in an unbroken, continuous, and consistent flow by the great prophets and poets of all times.” Truth was absolute, not relative, a fact that Hudson should never forget, and after he finally escaped from the apartment, the Harvard professor stood “shaking with emotion on the street.” After watching this “impressive, almost frightening, glimpse of an elemental force,” Acheson concluded, so much for the idea of Brandeis as the morally neutral scientist of the law. One cannot imagine this response from Holmes, who did believe in moral relativism and would probably have entered into conversation with Hudson comparing how moral values could change and quoting a variety of esoteric sources in the process.
Although Holmes would allow legislatures to experiment with different social approaches, he did so without much caring about them. In his fatalistic view, none of them would affect the world one way or the other. He did not share Brandeis’s enthusiasm for reform. “Generally speaking I agree with you in liking to see social experiments tried,” he told his colleague, “but I do so without enthusiasm because I believe that is merely shifting the pressure and that so long as we have free propagation Malthus is right in his general view.” He said that every “sensible man in the country knows that the Sherman law is a damned nonsense, but if my country wants to go to hell, I’m here to help.”
As a result, he was often as ready to approve repressive legislation as he was social reform. Brandeis the political and social activist did think that reforms could make a difference. He did not assume that all legislative acts would be wise, but because of his faith in democracy he wanted to give them a chance at success. Late in his life he told his niece, “I always went on the principle of ‘Do what you can and hope for the best’—I worked on the problem at hand.” He knew from personal experience that while some proposals, like savings bank insurance, succeeded, others, like the sliding scale, had failed. The great feature of a federal system, he declared, was that it allowed states to serve as laboratories of reform.
The two men, of course, did not differ on everything. Like Brandeis, Holmes valued ideals—”without ideals what is life worth?” Rather, they came to similar conclusions from different perspectives. They both believed in judicial restraint, but Brandeis saw legislative policy making as a positive good in a democratic society, while Holmes believed that in the end it would do no good. Whereas Brandeis followed closely the great social movements of his time, Holmes ignored them, and did not even read newspapers. Both men believed that legislative majorities could infringe upon individual rights. “Above all rights,” Brandeis declared, “rises duty to the community.” Holmes saw this as a matter of course, but when individual liberties were concerned, Brandeis had to be persuaded of at least the logic of the legislative action, if not its rightness.
Brandeis understood where he and Holmes differed, and at times these differences found them on opposite sides of a decision; there never was a “preestablished harmony.” They generally agreed on important matters, and beyond that enjoyed a great friendship.