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As Justice Holmes said …
Oliver Wendell Holmes Jr. on free speech & related matters: selected quotations

Introduction by Ronald K.L. Collins
First Amendment scholar
05.21.08
Oliver Wendell Holmes Jr.

  • Holmes case tables
  • Modern free-speech jurisprudence begins with the words and wisdom of Oliver Wendell Holmes Jr.

    Whatever one may make of that, it is impossible to deny. Whether Holmes was a liberal or a libertarian, a pragmatist or a nihilist, a defender of individual rights or majority will, a social Darwinist or a totalitarian, or a “Jekyll-Holmes and Hyde-Holmes” as law professor Albert Alschuler has branded him, is difficult to say without nuanced elaboration. What is easier to gauge is his enormous impact on how we — laypeople and lawyers alike — think and talk about our system of freedom of expression. This is not necessarily because of the analytical soundness of his opinions, but rather, to echo Judge Richard Posner, because of his “rhetorical skill.” That is, “Holmes was a great judge because he was a great literary artist.”

    The most memorable and important instances of judge-announced law cannot always be reduced, as Holmes well understood, to rationalist Kantian formulas thereafter stamped as precedents. They often consist of statements that awaken within us readily recognizable emotions or instantly persuasive ideas or even enticingly provocative thoughts. By that measure, Holmes’ many statements on free speech remain touchstones in our free expression discourse.

    Then again, other lesser-known Holmes statements reveal a jaundiced-eye view of our First Amendment freedoms. And Holmes’ pre-1919 statements point to a far more crabbed notion of freedom of expression than what came later.

    Mindful of all of this and more, the selection of 60 quotes offered below is submitted for the reader’s examination, duly mindful of his or her right to dissent.

    Free speech & other values

    1. “[F]ree speech stands no differently than freedom from vaccination.”
    — Letter from Oliver Wendell Holmes Jr. to Learned Hand, June 24, 1918

    2. “I regarded my view in [Abrams v. United States] as simply upholding the right of a donkey to drool. But the usual notion is that you are free to say what you like if you don’t shock me. Of course the value of the constitutional right is only when you do shock people.”
    — Letter to Lewis Einstein, July 11, 1925

    3. “[D]ecisions for or against the privilege [to harm another by speech], which really can stand only upon [legislative policy] grounds, often are presented as hollow deductions from empty general propositions.”
    — “Privilege, Malice and Intent,” 8 Harvard Law Review 1, 3 (1894)

    4. “All my life I have sneered at the natural rights of man — and at times I have thought that the bills of rights in the Constitutions were overworked — [still,] they embody principles that men have died for, and that it is well not to forget in our haste to secure our notion of general welfare.”
    — Letter to Harold Laski, Sept. 15, 1916

    5. “We cannot live our dreams. We are lucky enough if we can give a sample of our best, and if in our hearts we can feel that it has been nobly done.”
    — Bar association address, Boston, March 7, 1900

    Free speech & pursuit of truth

    6. Value choices are “more or less arbitrary. ... Do you like sugar in your coffee or don’t you? ... So as to truth.”
    — Letter to Lady Pollock, Sept. 6, 1902

    7. “It has seemed to me that certainty is an illusion.”
    — Address to the Middlesex Bar Association, Dec. 3, 1902

    8. “Certitude is not the test of certainty.”
    — “Natural Law,” 32 Harvard Law Review 40 (1918)

    9. “I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt ... and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use.”
    — “The Soldier’s Faith,” address, Harvard University, Memorial Day, 1895

    10. “[W]hen 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. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
    — Dissenting in Abrams v. United States, 250 U.S. 616, 630 (1919)

    Defamation

    11. “So in slander and libel, the distinction between malice in law and malice in fact seems to give the result, that the usual ground of liability in such actions is simply doing certain overt acts; viz., making the false statements complained of, irrespective of intent.”
    — “Primitive Notions in Modern Law,” 10 American Law Review 422 (1876)

    12. “[T]he rule that [libel] is presumed upon proof of speaking certain words is equivalent to saying that the overt conduct of speaking those words may be actionable whether the consequence of damage to the plaintiff was intended or not.”
    The Common Law (1881, 1963 printing), p. 110.

    13. “It is for the public interest that people should be free to give the best information they can under certain circumstances without fear, but there is no public benefit in having lies told at any time; and when a charge is known to be false, or is in excess of what is required by the occasion, it is not necessary to make that charge in order to speak freely, and therefore it falls under the ordinary rule, that certain charges are made at the party’s peril in case they turn out to be false, whether evil consequences were intended or not.”
    The Common Law (1881, 1963 printing), p. 111

    14. “It would be no great curtailment of freedom to deny a man immunity in attaching a charge of crime to the name of his neighbor, even when he supposes himself alone. But it does not seem clear that the law would go quite so far as that.”
    The Common Law (1881, 1963 printing), p. 112

    15. “The publication is so manifestly detrimental that the defendant publishes it at the peril of being able to justify it in the sense in which the public will understand it. [To privilege such a communication] would be very like firing a gun into the street, and, when a man falls, setting up [a defense] that no one was known to be there.”
    — Dissenting in Hanson v. Globe Newspaper Co., 159 Mass. 293, 302, 301 (MA, 1893)

    16. “‘Whenever a man publishes, [to quote Lord Mansfield], he publishes at his peril.’ ... The reason is plain. A libel is harmful on its face. If a man sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a piece of news, the usual principles of tort will make him liable, if the statements are false or true only of someone else.”
    — For the Court in Peck v. Tribune Co., 214 U.S. 185, 186 (1909)

    17. The plaintiff “was a public officer in whose course of action connected with his office the citizens of [Puerto] Rico had a serious interest, and anything bearing on such action was a legitimate subject of statement and debate. It was so, at least, in the absence of express malice, — a phrase needing further analysis, although not for the purposes of this case.”
    — For the Court in Gandia v. Pettingill, 222 U.S. 452, 457 (1911

    Freedom of expression: written & spoken speech

    18. “[N]otwithstanding all modern inventions[,] letters still are the principal means of speech with those who are not before our face. I do not suppose that anyone would say that the freedom of written speech is less protected by the First Amendment than the freedom of spoken words.”
    — Dissenting in Leach v. Carlile, 258 U.S. 138, 140 (1922)

    Competition in the market

    19. “[F]ree competition is worth more to society than its costs, and on that ground the infliction of the damage is privileged.”
    - Dissenting in Vegelahn v. Gunter, 167 Mass. 92, 104 (MA, 1896)

    20. “One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other side is the necessary and desirable counterpart if the battle is to be carried on in a fair and equal way.”
    — Dissenting in Vegelahn v. Gunter, 167 Mass. 92, 104 (MA, 1896)

    21. “[T]he 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.”
    — Dissenting in Abrams v. United States, 250 U.S. 616, 630 (1919)

    Commercial expression

    22. “[W]hen habit and law combine to exclude every other [means of distant communication,] it seems to me that the First Amendment ... forbids such control of the post as was exercised here. I think [the postal 'fraud order' prohibiting the delivery of mail or payment of money orders to appellant] abridged freedom of speech on the part of the sender of the letters and that the appellant had such an interest in the exercise of their right that he could avail himself of it in this case.”
    — Dissenting in Leach v. Carlile, 258 U.S. 138, 141 (1922)

    Prior restraints

    23. “[T]he main purpose of [the federal and state free-speech guarantees] is ‘to prevent all such previous restraints upon publications as had been practised by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.”
    — For the Court in Patterson v. Colorado, 205 U.S. 454, 462 (1907)

    24. “It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose.”
    — For the Court in Schenck v. United States, 249 U.S. 47, 51-52 (1919)

    25. “I do not suppose that anyone would say that the freedom of written speech is less protected by the First Amendment than the freedom of spoken words. Therefore I cannot understand by what authority Congress undertakes to authorize anyone to determine in advance, on the grounds before us, that certain words shall not be uttered. Even those who interpret the Amendment most strictly agree that it was intended to prevent previous restraints. We have not before us any question as to how far Congress may go for the safety of the nation. The question is only whether it may make possible irreparable wrongs and the ruin of a business in the hope of preventing some cases of a private wrong that generally is accomplished without the aid of the mail. Usually private swindling does not depend upon the post-office. If the execution of this law does not abridge freedom of speech I do not quite see what could be said to do so.”
    — Dissenting in Leach v. Carlile, 258 U.S. 138, 140-141 (1922)

    Public forum

    26. “For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.”
    — For the court in Commonwealth v. Davis, 39 N.E. 113 (MA, 1895)

    Postal censorship

    27. “[N]otwithstanding all modern inventions[,] letters still are the principal means of speech with those who are not before our face. I do not suppose that anyone would say that the freedom of written speech is less protected by the First Amendment than the freedom of spoken words.”
    — Dissenting in Leach v. Carlile, 258 U.S. 138, 140 (1922)

    (Also see 22, above.)

    Free speech & popular will

    28. “Patriotism is the demand of the territorial club for priority, and as much priority as it needs for vital purposes, over such tribal groups as the churches and the trade unions. I go whole hog for the territorial club and I don’t care a damn if it interferes with some of the spontaneities of the other groups. I think the Puritans were quite right when they whipped the Quakers and if it were conceivable — as every brutality is — that we should go back a century or two, the Catholics would be quite right, if they got the power, to make you and me shut our mouths.”
    — Letter to Felix Frankfurter, March 27, 1917

    29. “[I]t seems to me logical in the Catholic Church to kill heretics and the Puritans to whip Quakers — I see nothing more wrong in it from our ultimate standards than I do in killing Germans when we are at war.”
    — Letter to Harold Laski, Oct. 26, 1919

    30. “If the people want to go to Hell, I will help them. It’s my job.”
    — Letter to Harold Laski, May 13, 1919

    31. “I am so skeptical as to our knowledge about the goodness or badness of laws that I have no practical criticism except what the crowd wants.”
    — Letter to Harold Laski, May 13, 1919

    32. “If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”
    — Dissenting in Gitlow v. New York, 268 U.S. 652, 673 (1925)

    Free-speech dangers

    33. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
    — For the Court in Schenck v. United States, 249 U.S. 47, 52 (1919)

    34. “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”
    - For the Court in Schenck v. United States, 249 U.S. 47, 52 (1919)

    35. The government “constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace, because war opens dangers that do not exist at other times.”
    — Dissenting in Abrams v. United States, 250 U.S. 616, 627-628 (1919)

    36. “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
    — Dissenting in Abrams v. United States, 250 U.S. 616, 630 (1919)

    37. “Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”
    — Dissenting in Gitlow v. New York, 268 U.S. 652, 673 (1925)

    38. “[S]uppose that an imminent possibility of obstruction is sufficient. Still I think that only immediate and necessary action is contemplated, and that no case for summary proceedings is made out if after the event publications are called to the attention of the judge that might have led to an obstruction although they did not. So far as appears that is the present case.”
    — Dissenting in Toledo Newspaper Co. v. United States, 247 U.S. 402, 424 (1918)

    39. “I would go as far as any man in favor of the sharpest and most summary enforcement of order in court and obedience to decrees, but when there is no need for immediate action contempts are like any other breach of law and should be dealt with as the law deals with other illegal acts.”
    — Dissenting in Toledo Newspaper Co. v. United States, 247 U.S. 402, 426 (1918)

    40. “Misbehavior means something more than adverse comment or disrespect.”
    — Dissenting in Toledo Newspaper Co. v. United States, 247 U.S. 402, 426 (1918)

    The thought we hate

    41. “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”
    — Dissenting in United States v. Schwimmer, 279 U.S. 644, 654-655 (1929)

    42. “Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises.”
    — Dissenting in Abrams v. United States, 250 U.S. 616, 630 (1919)

    43. “I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
    — Dissenting in Abrams v. United States, 250 U.S. 616, 630 (1919)

    44. “If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”
    — Dissenting in Gitlow v. New York, 268 U.S. 652, 673 (1925)

    Free speech & war

    45. “No society has ever admitted that it could not sacrifice individual welfare to its own existence. If conscripts are necessary for its army, it seizes them, and marches them, with bayonets in their rear, to death ... . If a man is on a plank in the deep sea which will float only one, and a stranger lays hold of it, he will thrust him off if he can. When the state finds itself in a similar position, it does the same thing.”
    The Common Law (1881, 1951 printing), pp. 43-44

    46. “[I]n the midst of doubt, in the collapse of creeds, there is one thing I do not doubt ... and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use.”
    — “The Soldier’s Faith,” address, Harvard University, Memorial Day, 1895

    47. “When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment.”
    — For the Court in Moyer v. Peabody, 212 U.S. 78, 85 (1908)

    48. “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”
    — For the Court in Schenck v. United States, 249 U.S. 47, 52 (1919)

    49. “We do not lose our right to condemn either measures or men because the country is at war.”
    — For the Court in Frohwerk v. United States, 294 U.S. 204, 208 (1919)

    50. “When people are putting out all their energies in battle, I don’t think it unreasonable to say we won’t have obstacles intentionally put in the way of raising troops — by persons any more than by force.”
    — Unsent letter to Herbert Croly, May 12, 1919

    51. “The power [of the government to punish certain speech] undoubtedly is greater in time of war than in time of peace, because war opens dangers that do not exist at other times.”
    — Dissenting in Abrams v. United States, 250 U.S. 616, 627-628 (1919)

    52. “If a man thinks that in time of war the right of free speech carries the right to impede by discourse the raising of armies, I am content to ignore his intellect and say you will find that you had better not monkey with the buzzard.”
    — Letter to John Wigmore, June 7, 1919

    Suppression of speech

    53. “I go whole hog for the territorial club and I don’t care a damn if it interferes with some of the spontaneities of the other groups. I think the Puritans were quite right when the whipped the Quakers and if it were conceivable — as every brutality is — that we should go back a century or two, the Catholics would be quite right, if they got the power, to make you and me shut our mouths.”
    — Letter to Felix Frankfurter, March 27, 1917

    54. “[I]t seems to me logical in the Catholic Church to kill heretics and the Puritans to whip Quakers — I see nothing more wrong in it from our ultimate standards than I do in killing Germans when we are at war.”
    — Letter to Harold Laski, Oct. 26, 1919

    Government’s power to restrict freedom of speech & press

    55. “[T]here is nothing in the Constitution or the statute to prevent the city from attaching obedience to this rule (against political canvassing) as a condition to the office of policeman, and making it part of the good conduct required. The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him.”
    — For the court in McAuliffe v. Mayor, etc., of New Bedford, 29 N.E. 517, 517-518 (MA, 1892)

    56. “[T]he only power given to the Postmaster is to refrain from forwarding the papers when received and to return them to the senders. ... He could not issue a general order that a certain newspaper should not be carried because he thought it likely or certain that it would contain treasonable or obscene talk. The United States may give up the post office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues and it would take very strong language to convince me that Congress ever intended to give such a practically despotic power to any one man.”
    — Dissenting in United States ex rel Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 438 (1921)

    57. “[T]he main purpose of [the federal and state free speech guarantees] is ‘to prevent all such previous restraints upon publications as had been practised by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare.”
    — For the Court in Patterson v. Colorado, 205 U.S. 454, 462 (1907)

    58. “But if a court regards, as it may, a publication concerning a matter of law pending before it, as tending toward ... an interference, it may punish it as in the instance put. When a case is finished courts are subject to the same criticism as other people; but the propriety and necessity of preventing interference with the course of justice by premature statement, argument, or intimidation hardly can be denied.”
    — For the Court in Patterson v. Colorado, 205 U.S. 454, 463 (1907)

    59. “In this present case the disrespect for law that was encouraged was disregard of it — an overt breach and technically criminal act. It would be in accord with the usages of English to interpret disrespect as manifested disrespect, as active disregard going beyond the line drawn by the law.”
    — For the Court in Fox v. Washington, 236 U.S. 273, 277 (1915)

    (Also see 25, above.)

    Exceptions to the First Amendment

    60. “[T]he First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. ... We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.”
    — For the Court in Frohwerk v. United States, 249 U.S. 204, 206 (1919)


    Related

    Oliver Wendell Holmes Jr.’s voting record in free-speech cases

    Table showing how Supreme Court Justice Holmes voted in free-speech cases. 05.23.08

    Analysis/Commentary summary page
    View the latest analysis and commentary throughout the First Amendment Center Online.

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