Friday, December 13, 2013

Did Holmes Change His Mind?

     In this busy time of year, Holmes is paying less attention to our affairs, and won't have much to say for  a while. While he is otherwise occupied, I thought it might be a good moment to talk about the question raised in a fine new book by Thomas Healy, The Great Dissent, which presents us with an old conundrum: Why is Holmes given credit for founding the modern constitutional doctrine of near-absolute protection for the right to speak freely about public affairs, when he was profoundly hostile to talk of rights in general, and wrote several opinions in which he upheld criminal convictions contrary to our modern understanding of the First Amendment? 

One suggestion is that there were two incompatible strands to Holmes' thought. The first is "deference to the legislature," a disposition to allow majority votes to prevail on all questions, including those respecting rights of minorities. The second strand is a tolerance of diversity, and a conviction expressed late in his career, that free debate is essential in a democratic society. 
In the years after World War II, after Holmes had passed from the scene, his disdain for talk of natural rights, and his appalling support for the pseudo-science of eugenics, began to seem darker and more ominous than they had during his lifetime, when they were commonplaces of Progressive politics. He fell even farther out of favor in the 1950s, when his rubric, "clear and present danger," became a favorite of prosecutors in the McCarthy era. I believe it was the scholar Gerald Gunther who first suggested that Holmes had simply changed his mind. Gunther speculated that this had happened in the summer of 1919. Before that summer, Holmes had written three opinions for a unanimous Supreme Court, upholding criminal convictions of persons who opposed the war effort and the draft, while after that summer, he wrote a powerful dissent (Healy's "great dissent") in support of defendants who had been convicted of criminally seditious speech, because they had called for a general strike of workers during the war.

Various causes for this change of mind  have been suggested.  Gunther proposed the hypothesis that a young judge, Learned Hand, had persuaded Holmes to change his mind. Others have suggested Holmes' friend and colleague Louis D, Brandeis as the cause, still others have pointed to the influence of a young law professor, Zechariah Chafee, for whose work Holmes expressed admiration and pleasure. Still others have pointed to the influence of a circle of young men--Felix Frankfurter, Harold Laski, and others, whose praise meant a lot to Holmes.

Healy has collected all these suggestions into one, and propounds a hypothesis that these different influences converged in what amounted to a campaign, over the summer of 1919, to get Holmes to change his mind. The suggestion is put forward well and persuasively, with a great many citations to original documents of the time. In response to counter-arguments, Healy says that Holmes was moved to change his mind by a deep emotional need for the praise that the (comparatively) young men around him offered, that he feared would be withheld if he continued to uphold convictions for political dissent.

OK, this is turning out to be a very long post, but Healey neglects to mention any evidence or arguments to the contrary, and although he mentions my biography of  Holmes he fails to mention our disagreement. Why should this matter? Maybe it doesn't, but the First Amendment doctrines at issue are important and regularly being revisited, and it would be encouraging to know that their history is better understood,

I would like here to try to put the question objectively, to avoid the tribal arguments that so sometimes characterize discussions of questions that are politically charged, of which I too have been guilty. The folks over at the Yale Cognition Blog tell us that once a question becomes the subject of political controversy, arguments become polarized, and factual information is just slotted into the old arguments. The question of Holmes' views on the First Amendment has certainly become polarized in this way, at least among those of us who write about it, and I would like here to try to stick more closely to historic fact and legitimate inference, and avoid assembling an argument to support a predetermined position.

So, let's take a page from the Nate Silvers of the world, and perform a thought experiment. Take Holmes in the spring of 1919, as well as we can describe him in objective terms. What is the likelihood that the influences Healy describes would cause him to change his mind on the important question of constitutional protection for political speech? (You will see, I hope, that I am putting this as a question of probability, in Bayesian terms, as I somewhat dimly understand them).

To summarize briefly what I think is not in dispute: in the spring of 1919 when the Supreme Court adjourned its term, Holmes was 78 years old, a veteran of almost 55 years of law study, practice and service as a judge. Despite his age he appeared to be at the height of his intellectual powers. For the previous twelve years he had been a justice of the United States Supreme Court, but was not yet well known to the public. He was ambitious and somewhat arrogant, and very grateful for the praise of his young followers in the law. His career had been devoted to the study and practice of the English and American common law, and he had not often addressed questions arising under the federal constitution. When he did address the federal Constitution he tended to assimilate it to the common law, saying that the terms of the Constitution expressed principles derived from English common law "transplanted to American soil," and confessed ignorance of the early development of First Amendment doctrine. He usually avoided talk of "rights," which he thought were claims of transcendent principle, and preferred to speak instead about the "privileges" afforded to speech and the press in the common law. He said the phrase "clear and present danger" had emerged from his long study of the common law. Holmes supported US intervention in the First World War, and derided those who opposed both the war and the draft. At the moment in question he had just written three opinions for a unanimous Court, expressing in summary form his belief that constitutional freedom of expression was a privilege which could be defeated by a showing that it posed a "clear and present danger" of causing some harm that Congress had the power to forbid. 

The hypothesis is that criticism he heard of these views during the summer of 1919 caused him to change his mind. What are the chances that criticism from friends would cause him to change his mind over the course of the summer?

If the hypothesis is put this way, it has always seemed to me that the chances that Holmes would change his mind are close to zero. So I would bet on the null hypothesis, that there was no change. The change in language that appeared in his dissent the following fall therefore must be attributed to differences in the cases, and to the greater freedom had when speaking in dissent. That is just a bet, of course, but all  we have are probabilities.