What America Should Share with the World: Justice Holmes’ Dissent in Abrams v. United States and the Marketplace of Ideas

Written By: Robert Cox

Oliver Wendell Holmes.jpgA couple years ago I was asked to write an Op-Ed for the Fort Worth Star-Telegram as part of a series entitled “What America Should Share with the World”. Ten Americans from different professions, background and regions were asked to select a document that best shared an essential American value with the rest of the world. The editor’s asked us to consider the world in the aftermath of 9-11 and the Global War on Terror in making our selection and not to select the most obvious choices like the Declaration of Independence and the Gettysburg Address.

For my article, I selected Supreme Court Justice Oliver Wendell Holmes’ dissenting opinion in Abrams v. United States. The editors were so happy with my article that decided to use it as the introductory article in this series. My articles was later nominated for the American Bar Association’s Silver Gavel Award, which “recognize annually eligible entries from communications media that have been exemplary in helping to foster the American public’s understanding of the law and the legal system.”

In attempting to forward the article via email recently, I discovered the Fort Worth Star-Telegram has since removed the series from their web site and I re-post it here so that consistent with the spirit of the article it may continue to be found and read online. For those who wish to better understand the mission of Talk of the Sound you need look no further than this article:

Thirty years ago, it was enough to want to buy the world a Coke. Today the path to global peace and harmony is a bit more complicated. Many people around the world have a distorted view of America and its core values and some of those people are convinced that America is the source of global instability. To a large extent, the global war on terror is a war of ideas. If the United States and its allies are going to win that war it will ultimately depend on advancing core American values not projecting military power.

It ought not to shock the system that when asked to choose an essential American value to share with the world, a blogger would select “free speech” as that value. As for a particular document to be translated and distributed in nations that do not fully appreciate the character, values and spirit of the American people, bloggers tend to be partial to Supreme Court Justice Oliver Wendell Holmes’ dissenting opinion in Abrams v. United States. I am with them and would choose Holmes eloquent “marketplace of ideas” dissent in Abrams.

In Abrams, Justice Holmes recognized the natural human desire to “sweep away all opposition” when one is of firm conviction and desirous of a result yet warns,

…when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by 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, and that truth is the only ground upon which their wishes safely can be carried out.

Holmes goes on to note the fragile, experimental nature of our Constitution through which the right to express oneself freely is protected and the very high bar that ought be met in abridging that freedom.

Rather than a Coke, I’d like to buy the world a copy of Holmes’ dissent in Abrams, translated in to the language of their choice, in order to convey the sense of hope, optimism and trust implicit in his words. For, in order to fully understand free speech as a marketplace of ideas, one has to first accept the Jeffersonian premise to our nation, derived from Locke’s Second Treatise on Government, that governmental authority comes from the people and that the people have the right to take that power back. That government only rules with the consent of the governed. Free speech then is an expression of resistance to tyrannical impulses of which censorship is just one.

It is difficult enough, however, to get many Americans to understand how their right to free speech is protected by allowing protestors to burn flags, bigots to burn crosses and Larry Flynt to publish Hustler magazine so I do not expect people in, say, the Middle East or the former Soviet Republics to immediately embrace a radical notion of free speech that even our closest Western allies shun. Yet, Holmes belief that the best test of truth is acceptance in the marketplace of ideas expresses the quintessential American optimism that holds truth to be eternal and something that will, given time, overcome all obstacles to its expression. I’d like to share that with the world.

With his dissent in Abrams, Holmes taps into a broad range of American values: the connection between free speech and democracy, free market economics, the importance of advancing political debate through the ballot box not through the barrel of a gun, participatory government, and our system of checks and balances. That is a message we need to share with the rest of the world.

Granted, free speech is a messy business and it is not an unfettered absolute. There are limits to speech. The right does not extend to shouting “fire” in a crowded theater or using speech to abridge the rights of others. I am a blogger. Nowhere is free speech messier than in the blogosphere where self-published authors, some writing anonymously or pseudonymously, have pushed the bounds of taste, ethics and the First Amendment. My organization, the Media Bloggers Association, has attorneys who defend the free speech rights of bloggers and I have to admit we rarely take on a case where the blogger had not grossly offended someone’s sensibilities.

Therein lies Holmes caveat about the “experimental” nature of our Constitution. It is the constant struggle of our democracy to balance free speech with direct and immediate threats to the general welfare. I would hope that by sharing Holmes with the world, those who hold a jaundiced view of America might come to see that although imperfect, our permitting the expression of unpopular ideas is the best hope for arriving at understanding and, through that understanding, peace.