Alan M. Dershowitz has a review in today’s New York Times Book Review of a new exploration of Justice Oliver Wendell Holmes Jr.’s famous free-speech dissent in 1919. I cited this speech at the end of my blogpost the other day on Holmes’s Civil War experience. The case was called Abrams v. United States, in which the court upheld broad government powers to stifle free speech under the Sedition Act of 1918. Holmes dissented in the 7-2 vote.
The new book, by Thomas Healy, is The Great Dissent: How Oliver Wendell Holmes Changed His Mind – and the History of Free Speech in America. It shows how Holmes, in old age, came to a new understanding of free speech – a “full-blown defense” of it, in Dershowitz’s words.
In Healy’s view, Holmes’s dissent “incorporated nearly all the major themes of his life – his belief in the supremacy of experience over logic, his strange combination of confidence and doubt, his commitment to Darwinism. . . . his taste for battle. . . . It was almost as if Holmes had been working toward this moment his entire career, and now in one opinion, in one paragraph of that opinion – it had all come together in a brilliant expression of constitutional faith.”
Dershowitz writes: “The dissent introduced into American constitutional law ‘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.’ ” Dershowitz dislikes the analogy, since markets are regulated, but embraces the idea.