You talk, i like that. So my question then would he part of what you are talking about Oliver Wendell holmes was sort of mentally above it all in a sense of like that. Is that a major area to freedom of speech across the world like you know this dictator, we dont like this that a good thing because they seem to be above it all and we can bring it down to our level by physical force as we can talk like Oliver Wendell holmes. We can ring it down to our level by physical force so was that a great narrative to freedom of speech back then and now . The detachment and the difficulty breaking through to people. I suppose it could be. On the one hand it seems like your question gets at, should we be engaged in more aggressive diplomacy is supposed to force as a country clacks on the other hand, the question might be taken to ask you now is what it takes to advance free speech or for free speech to become personal to people . To the extent that that is what youre asking i think that is kind of the case. I think thats the case with lots of lots of legal issues. The justices of the Supreme Court are people i suppose but they are relatively removed from the concerns of most of us and i think that any time they can understand the sort of her small consequences of legal questions you know their decisions are going to be more formed and hopefully more accurate. So yeah i do think that kind of detachment or having your head in the clouds is certainly a barrier to a deeper understanding of free speech. You mentioned in the book and you mentioned today in the book that thomas healy served three times in the civil war and you mentioned frequently how his experience affected the way he looked at the world and the paragraph that you read to us is a fairly harsh view of the world its things that we are going to fight a lot but his position is thats part of the democracy. We have to scream at each other and its better to scream at each other because of better result will come out. Absolutely. Thats hard to accept. Not only is it okay to scream at one another but its okay to kill one another at the other fellow disagrees. He ultimately realizes if we are going to have any kind of confidence in the decisions we take we have to hear all viewpoints. Thats the only way in which we can feel assured Going Forward in our decisions but yes it starts off with this harsh view of the world thats informed by his experience. Fighting his fellow countrymen. What is that the disagreeing and killing the other fellow when he disagrees. Holmes was about 78 when he wrote that opinion. I wonder if you would comment. Do you think there is anything to factor in on the basis of advanced age . 78 in 1918 is two days 90 and i wonder if you would comment about this . I think its a little bit different from time on the court for time as a judge and so on. While i dont think if what you are asking is whether holmes was becoming soft in the head or anything like that, holmes is very sharp at this point and he continues to be sharp for a number of years on the court. If what you are asking is whether sort of approaching mortality makes holmes more sensitive to his legacy or his personal relationships, i think thats certainly possible. I think that these young friends certainly gave him a new lease on life and he was certainly very susceptible to their influence in a way that he might not have been at an earlier point in his life. He later reminisced about this. Making his life as being the happiest or the stretch of five or 10 years when is going to the house of truth is aiming one of the happiest periods of his life does that have something to do with his age . I suppose. Maybe at this point he is no longer busy trying to get somewhere or accomplish something. Maybe he is more in the moment and thats a good possibility. My name is eric gross and i want to thank you both for this presentation. To what extent was holmes and or his contemporaries and predecessors on the court influence by the technical framers of the constitution . A very good question. In general holmes was not what one would call today and originalist. Holmes could be in an involving constitution and the people who wrote the constitution could not have imagined that being that they had brought forth and so i dont think in general he was driven by a kind of obsession with what the founding generation would have thought. Remember too that holmes is not as far away from the generation as we are being born in 1841 and you know potentially having known members of the founding generation or met members of the founding generation, they might then less of a sense of oh theres this distant past that we have to get in touch with. Holmes mightve thought he was very well in touch with that past because it wasnt too far past. That said, there is an aspect of this decision in which he does rely a little bit on early developments in our history. When holmes writes that this is the theory of our constitution, the idea that that test of truth is the ability to get accepted in the competition of the market. He has to contend with the fact that in 1798 the country passed the sedition act of 1798 under which people were prosecuted for criticizing the government. What holmes does in this opinion was this opinion was the refudiated at jefferson when he took office and by congress when congress repaid the fines have been levied on the sedition act of 1798. He does at least in that way rely on some earlier history to support his assertion that its the theory of our constitution that we should let ideas find out the competition of the market. I think you mentioned briefly mrs. Holmes had an interesting view on rights in general and on the role of the judiciary in protecting individual rights. You mentioned it briefly but its just so important. Its one of the things that makes this decision so surprising. Holmes is one of the early advocates of judicial restraint. The idea that judges should not stand in the way of what the majority wants to do. They shouldnt use individual rights as the racist to strike down what the elected officials in the white house and the state legislatures and the congress had decided. There is this line that he liked to repeat that said my fellow countrymen, i will help them. Its my job. He didnt think it was the role of the courts to stand in the way of with the majority wanted to do. Thats one of the reasons he was a hero to young progresses. In the early 20th century Constitutional Rights were often used to strike down progressive legislation, progressive labor laws in particular. Holmes had dissented from those decisions not because he supported progressive labor registration, he didnt care but does the thought that courts had no business tracking down with the majority wanted to do. Thats the perspective that it starts with and why its so surprising that he then turns around in this context and says well now we should strike down with the majority did. The majority struck down the alien sedition act and the rossa kidding judge thought as a court we should step in. This is the beginning of what becomes too known as the double standard constitutional law where courts scrutinized very closely regulations of private activity, speech, reproductive rights and that sort of thing. But dont scrutinize closely economic legislation. All that has its roots in this opinion. Good afternoon professor. Listening to you and with the rest of my knowledge just a holmes, he was right there at the beginning of the generation. He was reviewing that idea like pragmatism so the speech was having an educated opinion about those inspirational things that he believed in. So fastforward to the baby boomer generation who one way or another rushes into extent to lytham and there is the nextgeneration. So for existential philosophy you dont have to have that you dont have to do your work. You just have a shortcut and if youre not happy about it. Yes its a very interesting question. Basically it sounds to me like you are comparing on the one hand pragmatism and on the other hand ideology. Pragmatism is in some ways presented as an absence of ideology. An idea is good if it works just the way the fork is good because it helps you eat food. Palms is very much a part of the development of this notion of adventism. Theres an excellent book called the metaphysical problem which counts the development of pragmatism in this country during the stories of homes and liam james and other individuals in the midto late 19th century america. Holmes does reject ideology. He saw what ideology is. He saw the horrors that ideology produced so he is very skeptical of the notion that there were some objective truth out there and you can see that theme very prominently in its opinion. Its because of skepticism about objective truth that we have to allow people to speak. But we think is the truth today we may discover tomorrow is not the truth and the only way we will find out is if we keep the debate and the discussion going. I think that people who are more ideological and think no, ive got the truth ,com,com ma they are less patient with that. Their view is well, this is the truth and i dont need to hear what the other side says. I can shut down the debate because i have already arrived at the truth. I do think that there is a sort of tension there for a conflict between pragmatism and ideology and i think holmes of opinion rep resents the more pragmatic view of things. Yes, he certainly believed that your opinions had to be informed and more importantly your actions have to be informed. That is why its okay to act in the face of uncertainty. He wasnt saying well just because we cant know the truth means we dont interact. Just the opposite. He thought yeah we had to act and even if we are not sure of the truth we still have to act but the one way in which we cannot act is to suppress speech because it only having heard all the ideas that are out there can we be confident that the action we are taking is the best we can make it this given point. I think most progressives feel education was crucial to that debate and we are having debates about the level of understanding that we have in our debates today. I dont know if you want to comment on that as a journalist. What you are trying to do often is educate us about some of these things but i think its a relative question that the context was different then in some ways what we are struggling with today. I dont know if people are less interested in gathering information today. It seems to me that we have very lively debate and discussion in this society. I guess maybe there is you know a little bit more, a lot more partisanship and people sort of segmenting off. You have got the people who listen to msnbc and maybe they are not talking to each other in the way they should and maybe that is a concern. I think that was there was less of that than although its hard to know. You right. Hello. I was wondering, in this day and age there are so many different ways to push her opinion like via social media and things like that. I was wondering would you say there is still at all any kind of punishment for hoisting an opinion thats unpopular, maybe not as extreme in 1919 but would you say there is . Well we have come a long way. We dont have an stored married protection for speech in this country and for the most part i think its fair to say when you can be punished merely for the ideas you have expressed, the Supreme Court has done an admiral job in protecting unpopular speakers. The debate we are having now is more about how can we get the information we need to have an educated debate . Is Edward Snowden being prosecuted or has he been indicted because of his ideas or because the government needs to be able to enforce the laws against leaking classified documents to maintain National Security. You know there may be a little bit of the former but i think its mostly the latter. Bradley manning i think is in the same situation. Now, going after them as aggressively as the government did and seeking the kind of punishment that the government sought might suggest that they are selectively targeting people who are challenging what they have done and that is certainly worrying. You know the social media is an interesting part of the equation now. Thats very interesting in the context of schools and student speech and that is raised all sorts of questions. To what extent can students be disciplined in school for things that they put on facebook at home when the students are accessing facebook at school so its having a disrupt that effect. The social media i do think has greatly expanded our ability to speak and in some ways democratized our ability to get our message out and raised at the same time lots of tricky questions. Jeffrey abelson. What was the general reaction to his opinion from his fellow justices and also general opinion of academic and population . Holmes writes this dissenting opinion and he always writes his dissents before the majority opinion has circulated because he wants to have it ready to go. As soon as he gets the majority he can distribute it to his colleagues. Everything was sent out by messenger said the gets the majority opinion and he senses to center out. We know this because he writes a letter to a friend that he had just sent around the descent and the next day three of his colleagues show up at his home. They are led up into his study and in the presence of his wife they ask holmes the court has not issued the opinion yet. Its going to be issued the next week and these three members ask him for the sake of National Security not to publish the descent. They are worried that coming from that figure is venerable as holmes is several war veteran and his whole family that this will give aid to the enemy and lead to the countrys resolve in the fight against the red menace. Holmes listened very patiently to their requests to a very civil discussion and sometimes even affectionate but ultimately he says no. We know about this because when they are led up into his study, he tells his secretary to stay in the adjoining room. That is where the secretaries were. As terry hears everything that is said in the secretary is Close Friends with dean acheson who is that your secretary to Justice Brandeis and years later dean acheson writes a memoir of his early years in washington recounts the story. That was the reaction on the court. Brandeis joined the opinion and supported holmes. And the public the reaction was mixed. Progressives were ecstatic, praise this. The editors of the republic published a tribute to holmes. They published his dissent in full. All of holmes friends right in these incredibly poignant emotional letters of gratitude to holmes. In academia its received less well. One of holmes sort of long friends john widmar repressor of low rates this just scathing critique of holmes dissent and allow review article and basically accuses holmes at being naive and unaware of the threat that the country faced and a number of other people say things along those lines. So its mixed. Its a dissenting opinion so even though people, some people were upset, it didnt have an impact right away. Their concern was that it ultimately would have an impact. They could see he was very powerful and that is what whitmore is worried about and of course he was right to be worried. Although it is a dissenting opinion it ultimately carries the day. It takes a little time but ultimately the court invokes holmes dissent as a foundational statement about commitment to free speech and he sort of takes this place in our culture that it has today. Whats the justification for suppressing any speech since the First Amendment makes no such distinction . The First Amendment says the government shall make no law abridging the freedom of speech. It doesnt talk about good speech or bad speech or dangerous speech or anything like that. So whered you get all of these theories exist the court goes through dozens of theories on what speech is not protected. Its a great question and i once asked my students the exact same question. So you are a close reader of the First Amendment that says make no law and justice hugo lack used a site that all the time. Make no law. It doesnt say make not too many laws are made of bad laws. It says make no law. An absolutist of the first interpretation is not possible. Theyre too many many ways that speech is used that most of us think should not be it. Throughout a few examples read perjury. Perjury is using speech. Is it protected by solicitation to murder . These are always that we use words and suggest that the mere fact that you do these things through words means to protect it would be problematic quick holmes deals with this problem himself. Not in the abrams dissent at eight months earlier in an earlier decision. He provides us an example and he says that free speech would not protect a man who falsely shouts fire and it crowded theater as an example of why we cant adopt an absolutist interpretation. Why is that a good example lacks for one because harm will result you have a crowded theater and someone shouts fire therell be a a rush to the door but more importantly its a good example because the harm that will result will result immediately before we have any chance to avert the harm. So that forms the basis for holmess he ultimately adopts which is the clear and present danger standard. You know it from tom clancy before tom clancy made it famous it was a line in the holmes opinion and the idea is that speech is protected unless it poses a clear and present danger meaning unless the danger is one that we can divert in any other way. And you cant avert the stampede in the theater in any other way other than to say about it time its against the law to do it. So you now i think its very hard to adopt an absolutist interpretation of the First Amendment. The problem becomes then how do you figure out whats protected and lets not protected and that is what gives people like me a job, to come up with theories and explanations. Talking about a different character in the book that you didnt mention. Learned hand, a wonderful name for a judge. So he is not a young person. Hes a middleaged person. He also plays a role in Justice Holmes changing of his mind. Can you talk about that a little bit . An interesting interplay of judges and this question. Learned hand was on on the Federal District court at the time. He was in his mid40s. He was a very well regarded judge of the philosophical event. He hears one of the first cases in the espionage act and one of the first judges to interpret the act and deal with these freespeech questions that it raises. He adopts a very narrow construction of the espionage act so as to leave a lot of room for free speech. And he does this before holmes writes in a these opinions. The hand is reversed by the