Dec 19, 2019
On March 4, 1801, Thomas
Jefferson, the newly elected president, gave his first inaugural
address. Jefferson eloquently dismissed the logic behind the
Sedition Act of 1798, which had sent Republican critics of
then-Federalist President John Adams to prison:
We are all republicans: we are all federalists.
If there be any among us who would wish to dissolve this Union, or
to change its republican form, let them stand undisturbed as
monuments of the safety with which error of opinion may be
tolerated, where reason is left free to combat it.
Based on this strong commitment
to a robust protection of free speech, one might have expected the
First Amendment to play a key role in entrenching the Jeffersonian
vision of free expression. But instead, it became an almost dead
letter for more than a century until revived by an iconic but
unlikely champion of the First Amendment: Supreme Court Justice
Oliver Wendell Holmes.
In this conversation, professor
Thomas Healy explains how Wendell Holmes changed his mind on free
speech and laid the foundation for the current strong legal
protection of the First Amendment. Thomas Healy is a professor of
law at Seton Hall University School of Law and the author of the
award-winning book “The Great
Dissent: How Oliver Wendell Holmes Changed His Mind--And Changed
the History of Free Speech in America”.
The conversation will
the First Amendment remained a dead letter in 19th century
Oliver Wendell Holmes’ background shaped his opinions and
Oliver Wendell Holmes long upheld a “Blackstonian” conception of
free speech protecting only against prior restraints on, not
subsequent punishments of, speech.
the Blackstonian conception of free speech permitted the federal
and local governments to restrict and punish everything from
peaceful public protests, obscenity, and political speech of “bad
the Espionage Act of 1917 and the Sedition Act of 1918 led to
dramatic restrictions of political speech and indictments of
thousands of activists protesting American participation in World
remarkable development in Wendell Holmes’ conception of the First
Amendment, from his opinion upholding conviction in the 1919 case
of Schenck v. United States to his famous dissenting opinion in
Abrams v. United States.
- How a
number of young scholars like Learned Hand, Harold Laski, Zechariah
Chafee, and Felix Frankfurter were instrumental in changing Wendell
Holmes’ mind on the limits of free speech.
Oliver Wendell Holmes introduced the clear and present danger test,
which would become an important test under First Amendment law over
the coming decades.
- Whether Wendell Holmes’ legacy will endure in
the 21st century, and would he even want it to in the digital
Why have kings, emperors, and
governments killed and imprisoned people to shut them up? And why
have countless people risked death and imprisonment to express
their beliefs? Jacob Mchangama guides you through the history of
free speech from the trial of Socrates to the Great
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