Document Type

Article

Publication Date

1-31-2010

Abstract

Justice Oliver Wendell Holmes Jr wrote the seminal freeexpression opinions in a series of cases arising during the World War I era Holmes wrote three majority opinions upholding convictions for expression proscribed under the Espionage Act and its amendments Then he wrote his famous Abrams v United States dissent arguing that the first amendment protected the defendants' writings Despite the consensus about the importance of these cases scholars have disagreed about Holmes's votes and opinions Did his Abrams dissent manifest a changed attitude toward the first amendment or had Holmes always been a principled defender of free expressionÔÇÿ Why did Holmes suddenly find expression constitutionally protected while the majority of justices continued to find it criminally punishableÔÇÿ To resolve these puzzles and to understand the World War I cases one must first understand a surprising connection between democracy and free expression Whereas today judges and scholars universally deem free expression prerequisite to democracy before the 1930s judges and scholars allowed the government to subordinate individual liberties including free speech and a free press to a republican democratic common good This connection between free expression and democracy casts the World War I cases into a new light Ultimately then this Article demonstrates that from an external standpoint Holmes changed significantly but that from an internal standpoint he never admitted or recognized such a transformation

First Page

192

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