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MARCH, 1923

No. 4 The editors disclaim responsibility for views expressed by contributors




University of Oklahoma

To Justice Oliver Wendell Holmes the law is a philosophy, and yet not a philosophy which cloisters itself in things abstract but which exhibits itself in things concrete. This has been recognized by such authorities as Viscount Haldane, Dean John H. Wigmore, Professor Felix Frankfurter, and Professor James H. Tufts. In their writings are to be found numerous intimations that the opinions of Justice Holmes are not mere adjudications of individual and uncorrelated cases, but are applications drawn from an already formulated universal philosophy of law, a whole corpus such as the learned justice confessed he longed to be the author of, when he spoke to the Suffolk Bar thus deprecatingly of his own record of opinions :

A thousand cases, when one would have liked to study to the bottom and to say his say on every question which the law ever has presented, and

*Paper read at the Third Annual Meeting of the Southwestern Political Science Association, Norman, Oklahoma, March 26, 1922.

1New Republic, Vol. 26, p. 34, March 9, 1921.
229 Harvard Law Review, 601.
329 Harvard Law Review, 683.
- American Bar Association Journal, Vol. 7, p. 362, July, 1921.

then to go on and invent new problems which
should be the test of doctrine, and then to general-
ize it all and write it in continuous, logical, philo-
sophic exposition, setting forth the whole corpus
with its roots in history and its justifications of

expedience real or supposed !5 Even earlier he had revealed his conception of a much larger philosophy of which the philosophy of the law was but a constituent. In 1896 he had written:

If the world is a subject for rational thought it is all of one piece; the same laws are found everywhere, and everything is connected with everything else; and if this is so, there is nothing mean, and nothing in which may not be seen the

universal law. For Justice Holmes, says Viscount Haldane, "knowledge is an entirety and law is but one phase of the entirety of the whole system of human knowledge.”

Such are the authorities which encourage us to look into the legal opinions of Justice Holmes for a "coherent body of constitutional law's on such a subject as freedom of speech.

Freedom of Speech as a Federal Question

It is notable that out of thirteen decisions touching the First Amendment to the federal constitution handed down during Holmes's tenure he has written opinions, either for the majority or on the dissent on all but four.'

Foremost of the freedom of speech cases in which he has spoken for the whole bench is that of Shenck v. United

5Speeches by Oliver Wendell Holmes (Boston: Little, Brown & Co., 1918), p. 83; Collected Legal Papers by Oliver Wendell Holmes (New York: Harcourt, Brace and Co., 1920), p. 245.

6 Collected Legal Papers, p. 159.
7 See note 2, supra.
8Frankfurter, 29 Harvard Law Review, 684.

9Cases in which Holmes wrote no opinion but concurred with the majority of the court are these: United States v. Williams (194 U. S. 279, 48 L. Ed. 979, 24 Sup. Ct. 719) upholding the constitutionality States,10 which was the first decision to sustain the constitutionality of the Espionage Act of June 15, 1917. The case was a clear one of incitement to resist the draft. Shenck and others had mailed circulars to men who had passed the exemption boards, urging them in impassioned language to assert their rights against conscription as against an unconstitutional despotism.

"We admit," says Justice Holmes, "that in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. ... The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic. ... The question in every case is whether the words used 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."

In this he has stated a valuable rule in law. He has placed the test of criminality upon “clear and present danger" of "substantive evils,” evidently meaning by such evils not merely the harboring of heretic thoughts but the actual interference with some power vested in Congress

of the Immigration Act of March 3, 1903, by which alien anarchists are excluded. Lewis Publishing Co. v. Morgan (229 U. S. 288, 57 L. Ed. 1190) holding that the additional conditions upon the right to enjoy second-class mail privileges, imposed by the Postoffice Appropriation Act of August 24, 1912, paragraph 2, which required statements of circulation and ownership and the labeling of all paid reading matter "Advertisement” are not repugnant to the freedom of the press clause. Mutual Film Co. v. Industrial Commission of Ohio (236 U. S. 230, 59 L. Ed. 552) upholding censorship of motion picture films. Gilbert v. Minnesota (254 U. S. 325, 65 L. Ed. 287, 41 Sup. Ct. 125) upholding the constitutionality of a state statute making it unlawful to advocate or teach that men should not enlist in the army, navy or state militia, or that citizens should not aid the United States in carrying on war with its public enemies.

10249 U. S. 47, 63 L. Ed. 470.

by the Constitution as the war power is.11 The justice added however:

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. This is a statement of the interest of society which calls for unimpeded action when the whole social body has committed its energies to one course. But it will be seen that he construes this general interest as one which entitles society, not to stop all questioning of its action, but only to put out of its way any actual impediment of its action. The temporary interest does not negative the permanent interest which society has in the free dissemination of ideas.

Holmes probably intended that this sentence should enforce the point that war was a circumstance which made the dangerousness of Shenck's utterances more clear and immanent, but not that it should give any weight to the sophistry, once suggested, that the First Amendment was suspended by the existence of war.

That Holmes did not intend to make this case a precedent for promiscuous prosecutions is well shown in his dissenting opinion in Abrams v. United States.12 It was in this dissent that he stood out for the vital distinction between mere tendency to incite and actual incitement.

The circulars on which the Abrams indictments were based were printed by an isolated, penniless, and perhaps witless group of five young Russian malcontents. They contained the usual “tall talk” (Holmes) to the "workers of the world," signed “The Revolutionists" and "The Rebels," maligning President Wilson and capitalism for interference in soviet Russia and exhorting workers to

11 For a comprehensive analysis of the Abrams case and other Espionage Act cases, see Chafee, Freedom of Speech (New York: Harcourt, Brace & Co., 1920), pp. 87-106, 148-158.

12250 U. S. 616, 63 L. Ed. 1173.

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leave munition plants since there they might be making bullets and bayonets not for the Germans but for their fellow workers in Russia.

Holmes admitted that the leaflets did urge curtailment of production, which was the only one of the four counts upon which Justice Clarke for the majority seriously attempted to justify the verdict of the jury. "But,” Holmes added, "to make the conduct criminal, that statute requires that it should be done 'with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.' And it seemed to him that no such intent had been proved. He insisted that the words of the statute requiring intent must be taken “in a strict and accurate sense.

Nothing is retracted that he said in the Shenck case or in the Frohwerck case, which intervened, as to the validity of the statute, but the vital point he contends for is that the statute is not to be carried by construction beyond the test he laid down in the Shenck case, the “clear and present danger" of "substantive evils that Congress has a right to prevent.” The crux of his dissent is that the test merely of the tendency of the words used is not good.

This has been analyzed as an application to espionage cases of the common law rule of liability for incitement to crime.13

"It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion," Holmes declared in Abrams' case. Congress certainly cannot forbid all effort to change the mind of the country."

So after stating his view that the leaflets were aimed only to aid the Russian revolution and not to provoke resistance to the United States in its war with Germany, he observes :

Even if I am technically wrong, and enough can be squeezed from these poor and puny anonymi

1329 Yale Law Journal, 337, and Chafee, Freedom of Speech, pp. 89, 155.

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