In a fascinating book, The Great Dissent: How Oliver Wendell Holmes Changed His Mind – And Changed Free Speech in America, author Thomas Healy tells the story of how Supreme Court Justice Holmes came to believe in free speech as largely an inviolate amendment. He once did not share that belief and indeed, before Holmes’ dissent written in 1919, free speech was not seen as a fundamental right for all Americans. Holmes had spent his life and writings dismissing individual rights in favor of the rights of the whole. He was in line with much of jurisprudence in that belief as Americans were imprisoned regularly for what they said.
There were a lot of people and events that helped flip Holmes’ opinion on the importance of the individual right of free speech and one of the first people Holmes encountered to challenge this belief was another judge named Learned Hand. Judge Hand was a progressive jurist who served on the federal Court of Appeals where decisions were rendered in collaboration with two other judges.
In 1917, he presided over a case that involved the Espionage Act, which was passed by Congress to not only crack down on spying during World War I (or the Great War as it was known at that time), but also to single out those who opposed the war. It was nothing new for the federal government to penalize those who spoke out against it. Since the 1798 Sedition Act under President Adams, every time the US has gone to war the administration and Congress has often tried to punish protesters.
Thus, when Judge Hand chose to dissent from his fellow Court of Appeals judges in upholding the individual’s right to free speech against the government’s right to penalize protest, Hand was going against tremendous public pressure. In his estimation, this decision cost him any chance for the Supreme Court. But over the course of the next two years Hand continued to advocate for his stance by meeting with Justice Holmes face to face and sending him several letters, urging him to change his mind and to uphold the free speech rights of individuals. Hand’s efforts, along with those of others, persuaded Holmes to write his infamous dissent in 1919, which has served as the legal foundation for upholding the right of free speech for all Americans.
I love these kinds of stories; stories of unknown, ordinary people that helped shape history. When I think of the Birmingham Bus Boycott I think of Joanne Robinson and the Women’s Political Council, which did the bulk of organizing. Or when I think of the Freedom Riders in the early 60s, which desegregated interstate travel, I think of Diane Nash who was in charge of logistics and who refused to allow the Freedom Rides to be quashed through violence.
Judge Hand played a similar role here. And sharing this could be a nice way to end another story of ordinary people doing extraordinary things. Unfortunately, there is more to this story and another lesson to be learned (pun not intended!).
You see, in 1950, Judge Hand was still on the bench when a case came before him regarding eleven members of the Communist Party of America who were found guilty for little more than sharing the teachings of Lenin and Marx. They had not committed any violence or stockpiled any weapons, yet they were found guilty. Though the Communist scare in 1950 was as high-pitched as the pressure to support the war effort in 1917, Hand stunningly upheld the guilty verdict, turning his back on the rights of all Americans to free speech.
When I read that I was deeply saddened. We want our heroes to remain heroic. But Hand was more human than hero, and in many ways, I think we all are. Just as we are not defined by our worst act, we are also not defined by our greatest act either. Past righteousness does not guarantee future righteousness. It is the sum of our life that defines us. Thus, while none of us are perfect, I must remain as hungry for righteousness and justice in my adult years as I was in my teens and early 20s. Righteousness and justice is not just for certain contexts or for certain ages, it is for all people in all contexts, at all times. Let us remain hungry for the presence of justice each and every day.
