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Justice Oliver Wendell Holmes circa 1924. Holmes was perceived as a civil libertarian who protected the an initial Amendment from encroachments, specifically during world War I and also the period of hostility to dissent that followed the war. (National Photo company Collection, photograph via Library of conference public domain)


By the time Oliver Wendell Holmes Jr. (1841–1935) retired from the supreme Court in 1932, ~ serving because that 29 years, the had come to be known together the good Dissenter. He was viewed as a polite libertarian who safeguarded the an initial Amendment from encroachments, particularly during human being War I and also the duration of hostility to dissent that adhered to the war.

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Holmes developed the clear and also present risk test

Holmes wrote few of the most far-reaching free decided decisions ever handed under by the Court. In the procedure he check to determine the fine line between protected and also unprotected speech with his clear and also present danger test, in i m sorry he used the now standard example the an individual falsely shouting “Fire” in a theater as an instance of speech that was “substantively evil.”

Holmes to be born in Boston, Massachusetts, right into a prominent, staunchly abolitionist family. ~ graduating from Harvard in 1861, he offered with the Massachusetts 20th Volunteers during the civil War. He i graduated from Harvard law School in 1866. He went back to Harvard to teach legit history, constitution law, and also jurisprudence after ~ a brief duration of private exercise in partnership v his brother. A compilation the Holmes’s Harvard lectures was released in 1881 together The usual Law. The common Law,considered by countless scholars to it is in the ideal book written on the American legit system,expounded Holmes’s legal philosophy, i beg your pardon he based upon the notion that legislation is obtained from person experience rather than logic.

In 1882 Holmes, a gradual Republican, embraced a place on the Massachusetts supreme Court where he served for 20 years. Holmes helped to shape the state’s interpretations that libel and also slander laws. He was called Massachusetts chief justice in 1899. In 1902 president Theodore Roosevelt called him to the can be fried Court, and the Senate unanimously evidenced him.

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Justice Oliver Wendell Holmes in ~ the period of 21 as a captain in the Union army during the Civil battle in 1862. Holmes offered throughout the conflict and also was wounded 3 times. (AP photo, offered with permission indigenous the associated Press)

Holmes did not start his tenure together a an initial Amendment advocate

Holmes did not start his tenure as a first Amendment advocate, assuming that role after an ext than a decade on the Court. His first significant experience v the very first Amendment as a justice arisen with Patterson v. Colorado (1907), in i m sorry a newspaper editor to be convicted the contempt ~ printing articles and cartoons illustrating members that the Colorado can be fried Court in a derogatory manner. Creating for the majority, Holmes figured out that no an initial Amendment worries were at issue due to the fact that the amendment minimal only the action of the national government.

The Court addressed the constitutionality of a comparable statute in Fox v. Washington (1915). In his bulk opinion, Holmes garbage Jay Fox’s claim that his first Amendment rights had been violation upon in his misdemeanor conviction because that printing an article, “The Nude and the Prudes,” in prayer of nudity.

Holmes supported for very first Amendment civil liberties in sedition cases

Holmes started to take it on the duty of activist civil libertarian v two sedition cases that source in the joined States’ joining in people War I. In Schenck v. United says (1919), Holmes yielded the majority opinion upholding the conviction the socialist Charles Schenck, who had been charged v violating the Espionage plot of 1917 through attempting come discourage draftees native responding to draft notices.

Acknowledging that interfering through the government’s capacity to advanced troops can constitute a legitimate exemption to the very first Amendment, Holmes presented the clear and also present danger test. Attempting to identify what develops of speech to be unprotected by the first Amendment, Holmes said that it need to be identified according to “whether the words supplied are used in such circumstances and are of such a nature as to create a clear and present risk that they will certainly bring around the substantive evils that Congress has actually a ideal to prevent.” Those evils were defined as plotting the fall of the government, inciting riots, and also destroying life and also property.

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Justice Oliver Wendell Holmes in 1931. Holmes wrote few of the most far-reaching free speech decisions ever before handed under by the Court. In the procedure he check to recognize the good line between protected and unprotected speech with his clear and present peril test, in i beg your pardon he provided the now classic example of an separation, personal, instance falsely shouting “Fire” in a theater as an instance of speech the was “substantively evil.” (AP Photo, supplied with permission native the associated Press)

Later that exact same year, in Abrams v. United claims (1919), Holmes dissented, together with Justice luigi D. Brandeis, as soon as the Court upheld the convictions of five petitioners also charged under the Espionage plot of 1917. In his dissent, Holmes stated that the rule of totally free speech stayed the same during war time as in peace time; he reiterated his id that conference restraints top top speech were permissible only as soon as speech made up a “present risk of prompt evil or an will to bring it about.”

Holmes continued to advocate for the clear and present danger test

By 1923 world War I had ended, and the the atmosphere of the Court had become much more open on the problem of seditious speech. Such was the instance when the Court agreed come hear Gitlow v. Brand-new York (reargued 1925). The case associated socialist Benjamin Gitlow, who had actually been accused of plot to overthrow the government and had to be convicted that criminal anarchy because that distributing socialist literature. Although noting that Gitlow had actually not controlled to encourage rather to revolt, the Court upheld his conviction. Gitlow began the procedure of combine the an initial Amendment for free of speech and also press and also making them applicable come the states. While accepting the idea that the very first Amendment should apply to the states, Holmes to be joined by Brandeis in a dissenting opinion in i m sorry he said that the indigenous at concern posed no clear and also present peril of inciting violent action.

In 1927 the Court went back to the issue of sedition in Whitney v. California, a case complicated California’s criminal anti-syndicalism law. The Court upheld the statute and acknowledged the Charlotte Whitney, as a member of a Communist organization, was in a position to attempt to bring out seditious activities in enhancement to talking about them. Acknowledging that Communist conspiracies were not safeguarded by the an initial Amendment due to the fact that those associated in the plot had actually both the intent and means to attempt an overthrow of the government, Holmes join in Brandeis’s concurring opinion, i m sorry is oft-cited as an eloquent defense of totally free expression.

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Justice Oliver Wendell Holmes in 1931 in the Library at his Washington, D.C. Home. Because that Holmes, the first Amendment detailed the foundation for a autonomous society. He was accordingly more likely come overturn state and also federal convictions in this area 보다 in the area of financial regulation. (AP photo, supplied with permission indigenous the connected Press)

Clear and also present hazard test at some point gave method to various other tests

Although some justices never welcomed the validity that Holmes’s argument, the Court used the clear and present peril test in a number of cases. After ~ the 1950s, however, the test to be supplanted by the desired position doctrine, which offered precedence come the an initial Amendment whenever it come into dispute with various other rights. Ultimately, the Court treated an initial Amendment issues under the strictly scrutiny test, which carefully examines situations in which an essential rights and those of defended classes follow to race, religion, and also ethnicity space at issue.

For Holmes, the very first Amendment detailed the structure for a democratic society. He to be accordingly much more likely to overturn state and also federal convictions in this area than in the area of financial regulation. In his notable dissents in Lochner v. New York (1905) and also Hammer v. Dagenhart (1918), he to be willing come uphold state best hours and child job laws versus claims the they violated reigning principles of laissez faire economics, i m sorry Holmes go not think were included in the Constitution.

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This post was originally published in 2009. Elizabeth Purdy, Ph.D., is an independent scholar who has published write-ups on subjects ranging from politics science and women"s studies to economics and also popular culture.