The Great Dissent – A Response from the Author

[Editor’s note: Author Thomas Healy asked me to post a response to my brief review of his book, and I was happy to agree. I’m even happier now, because it’s a nicely illuminating response.]

Thanks to David for starting a discussion about my book, “The Great Dissent: How Oliver Wendell Holmes Changed His Mind – and Changed the History of Free Speech in America,” and for giving me a chance to respond to some of the points he makes.

First, David wonders why I do not say more about the role of Justice Brandeis in bringing Holmes around to an expansive view of free speech. As David notes, Brandeis does make several appearances in the book. I describe how he pressured Holmes to dissent in two early free speech cases, how he likely persuaded the government to drop one of the Espionage Act cases, how he criticized Holmes for his indifference to facts, and how, once Holmes dissented in Abrams, Brandeis picked up the ball and ran with it in cases like Schaefer and Pierce. But David wishes I had explored more fully the extent to which Brandeis’s thinking on free speech influenced Holmes.

The truth is, I didn’t find any further evidence of Brandeis’s influence. As a liberal he seems to have instinctually favored free speech. [editor’s note (update): I’m writing a paper now arguing that Brandeis was not, in modern terms, a “liberal,” but something of a transitional figure between statist Progressivism and post-New Deal liberalism. I think there’s a tendency to take Brandeis’s support for freedom of speech for granted, even though fellow progressives were arguing that judges should stay out of it, e.g., Edward S. Corwin, Freedom of Speech and Press Under the First Amendment: A Resume , 30 Yale L. J. 48 (1920)]. But as he told Frankfurter in 1923, he had not really thought through the issue prior to Abrams. Indeed, eight months before Abrams, Brandeis wrote the majority opinion in Sugarman upholding a conviction under the Espionage Act. It was not until after Abrams – in cases like Schaefer, Pierce and Whitney – that Brandeis worked out his own theory of free speech. It is also worth remembering that Brandeis had his hand in many pies during his early years on the Court. He was frequently consulted by the Wilson administration on war and labor issues, was the de facto leader of the American Zionist movement, and spent the summer of 1919 on a trip to the Holy Land. It should not be surprising therefore that he had less influence on Holmes’s free speech thinking than Harold Laski, Learned Hand, and other men who figure more prominently in my book.

[Editor’s note: Very interesting, thanks. But perhaps because the narrative culminates in Abrams, it perhaps unfairly elevates Holmes’s role as a free speech champion over Brandeis’s, even though Brandeis seems to have been the stronger advocate. Justice Holmes, for example, in 1920 joined the majority in upholding a state law penalizing interference with or discouragement of enlistment in the military. Justice Brandeis, dissenting, argued that the Fourteenth Amendment protected freedom of “to teach, either in the privacy of the home or publicly, the doctrine of pacificism.” A year later, according to at least one recent source it was Brandeis who persuaded Holmes to dissent in Milwaukee Social Democratic Publishing Co. v. Burleson.]

In a related vein, David says he is surprised that I do not mention the House of Truth, the legal and political salon in Washington D.C. that Holmes frequented in the 1910s. Actually, I mention the House of Truth three times – on pages 61-62 when discussing Holmes’s connection to the New Republic, on page 122 when discussing his relationship with Frankfurter, and on page 212 when discussing Frankfurter’s engagement. I also cite Brad Snyder’s article on the House of Truth, though it was published after I had finished the first draft of my book. [Editor’s note: Oops, my bad, I thought of the House of Truth after I both finished reading the book and writing the review, and, not remembering seeing any House of Truth references, I stuck in that sentence a the last minute. I don’t have the book in front of me, but I’m pretty sure I checked the index and it wasn’t there. Anyway, my apologies, I should have checked that out more thoroughly.]

It is true that I do not make any specific claims about the influence of the House of Truth on Holmes’s free speech views. But there are two reasons for that. First, by the time the Court began hearing cases under the Espionage and Sedition Acts, the House of Truth was a less prominent part of Holmes’s routine than it had been. In all of Holmes’s correspondence for 1918 and 1919, I came across only a couple references to him visiting the house. (In fact, I had to abandon my original title for the book – The House of Truth – because of my inability to place Holmes at the house in any scenes in the book). More importantly, the House of Truth itself was only the physical home and meeting place of various young intellectuals – Frankfurter, Laski, Hand, the editors of the New Republic – who influenced Holmes. And my entire book is about the role these men played in changing Holmes’s views on free speech. So to suggest that I don’t explore the role of the House of Truth is to elevate the physical space above the people who made it what it was.

David is right that I do not explore why Holmes’s turnabout on free speech was not accompanied by a turnabout on other civil liberties issues. The reason is that, like David, I believe authors should stay on point, and the point of my book was to explain his change of heart on free speech.

As to why I explore aspects of Holmes’s personal life, such as his affair with Lady Castletown, I think David has answered that question himself in his update. To my mind, one of the reasons Holmes was so open to the influence of Laski and other young men was because of an emptiness at home. Although he and his wife, Fanny, were compatible, there was little passion between them. And as a result of Fanny’s recurring breakdowns (and their lack of children), Holmes was often on his own. Fanny had one of her breakdowns in the summer of 1919, which led Holmes to turn to Laski for companionship. Was it necessary to recount Holmes’s affair with Lady Castletown twenty years earlier to make the point that Holmes often threw himself into intimate relationships when Fanny was ill? Perhaps not, but the question I asked myself was whether a reader who knew nothing about Holmes would want this information. I decided the answer was yes. To withhold it would have felt like a material omission.

David seems to have figured all this out himself, but still seems troubled that I did not make the point more explicitly. The reason has to do with the type of book I was writing. I decided early on in this project to tell a story rather than to make an argument (although of course there is an argument implicit in the story). It seemed to me that the only way to really understand why Holmes changed his mind was to see the events of 1918 and 1919 through his eyes, to immerse myself and the reader in his life. In order to tell an effective story, however, the narrator sometimes has to step back and simply let things speak for themselves without interjecting commentary and analysis at every turn. I recognize that this is different from what legal scholars usually do. But historians do it quite often, and I think it serves an important function.

In the end, I agree with David that there is more to be said about Holmes and free speech. With the great subjects of history, that is always the case. How many books have been written about Lincoln and the Civil War, each with a new take? But the fact that there remains more to say is not a mark against any particular book; it’s simply a credit to the richness of the subject.