by Ronald K.L. Collins. Cambridge: Cambridge University Press, 2010. 448pp. Hardback. $95.00/£60.00. ISBN: 9780521194600. Paper. $29.99/£19.99. ISBN: 9780521143899.
Reviewed by Paul I. Weizer, Department of Economics, History, and Political Science, Fitchburg State University. Email: pweizer [at] fitchburgstate.edu.
This book, by Ronald K.L. Collins, the Harold S. Shefelman Scholar at the University of Washington School of Law, presents a comprehensive and often compelling look at the life of Oliver Wendell Holmes. While Holmes is universally regarded as a giant in the field of American law and often thought of as one of the greatest Justices ever to serve on the Supreme Court, it is within the First Amendment realm where his legacy is most often attributed. Ironically, much of this attention is focused on his 1919 landmark opinion in SCHENCK v. UNITED STATES, which created the clear and present danger standard, as well as his passionate dissent in ABRAMS v. UNITED STATES that same year. Each of these opinions came both late in his life (he was 78 at the time) and late in his tenure on the Court (where he was in his 17th term).
It has been said that a man is the sum of his experiences. The main aim of this book is to explore the life of Holmes and the events which led to his free speech jurisprudence. This is done through a careful examination of the personal correspondence, public speeches and judicial opinions of Holmes. This book is billed as the first complete collection of works by Justice Holmes on matters related to free speech. However, it is more than just that. By providing letters and speeches, in addition to the traditional judicial opinions found elsewhere, Collins helps to provide a sense of the man and a view of the Justice.
The book is presented in six parts (plus a prologue and epilogue), each of which begins with an original essay designed to place the chosen excerpts in proper context.
Part one looks at Holmes’ Civil War experiences and the impact those encounters had on his worldview. While Holmes was born into the very wealthy Boston brahmin society and had access to all of the advantages that accompany such an upbringing. Yet he chose to fight in the war. His commitment to the abolitionist cause led him directly to the battlefield where he saw firsthand the dangers and horror of war. Despite being injured in battle (repeatedly no less), he continued to fight. He eventually left the service a changed man, one less idealistic and more cynical. The letters and speeches provided in this chapter are most illuminating and are among the most interesting in the book. The deep personal convictions, the spirit of liberty, and the re-examination of truth as an evolving concept, which are later famously articulated in his landmark court opinions, come through clearly in [*223] these life defining moments. Seeing how his life changed and his world view evolved from the ground level was fascinating. Additionally, after each selection, Collins provides extensive commentary to provide context and maintain the flow of the book.
Part two looks at the early writings of Holmes prior to becoming a national figure or receiving his first judicial appointment. Here we see through articles and speeches the germination of the idea of competition of the marketplace which would later define the free speech jurisprudence of Justice Holmes already taking hold as a young writer. This section also includes excerpts from THE COMMON LAW which helped establish his name in national legal circles. The commentary following these selections also helps to foreshadow the elements from these early writings would be used in later Supreme Court decisions.
Part three examines the state court experience where he spent twenty years as a member of the Massachusetts Supreme Judicial Court. While most business of that court in those days dealt with criminal, contract and family law, between 1883 and 1902, Holmes took part in deciding eight cases touching on free speech issues. These opinions, seven of which are excerpted here along with related correspondence, begin to show the development of his legal thinking. Additionally, a lecture entitled The Path of Law is also prominently featured as an expression of the Holmesian view of the law as more than just a set of abstract principles. The commentaries which follow (and rival the excerpted portions in length) also include a range of opinions of important legal scholars as to the place of this lecture in the history of American law.
Part four explorers the early years of Holmes’ tenure on the Supreme Court. In free speech terms, this period saw the use of the bad tendency test for free speech cases in TURNER v. WILLIAMS (1904), with Holmes joining in the decision of the Court. It also saw Holmes’ famous dissent in LOCHNER v. NEW YORK (1905). Collins suggests that these (as well as other cases cited in this section) demonstrate the reluctance of Holmes to set aside the will of the majority. This section also includes PATTERSON v. COLORADO (1907), the first free speech decision authored by Justice Holmes, as well as other opinions involving the press and law of defamation. The commentary in this section is particularly well done, as Collins is not only able to find seeds in these early decisions which would bloom in later years, but also links back to prior chapters to show the continuum of development in Holmes’ legal thought.
Part five takes us to Supreme Court opinions when the nation is at war. This chapter includes the famous decision of SCHENCK v. UNITED STATES (1919) and the creation of the clear and present danger standard. However, it focuses on a trio of decisions (FROHWERK v. UNITED STATES (1919) and UNITED STATES v. DEBS (1919), in addition to SCHENCK). Ironically, the plaintiffs lost all three cases. The chapter begins, however, with an unpublished dissent in which Holmes was prepared to defend the free speech rights of the socialist petitioner. While this review of cases and the commentary which follows are [*224] very useful (the commentary following SCHENCK is longer than the opinion itself), the real gems in this section come from the personal correspondence between Holmes and a variety of legal luminaries, which allow for fascinating insights.
Part six begins with the classic Holmes/Brandeis dissent in ABRAMS v. UNITED STATES (1919) and follows through until the end of his tenure on the Court. ABRAMS was, Collins contends, the seminal case in Holmes’ career, as it established him as a popular icon of American liberalism. It was interestingly noted that Holmes had only voted to sustain a free speech claim three times since joining the Court in 1902. In all other free speech cases (eleven in total), he voted to deny relief. In stark contrast to this record, in the fourteen speech cases which he participated post-ABRAMS, he voted in favor of the speaker in all but two. Of course, Holmes remained something of a paradox and would disappoint liberal groups until the end in cases such as MEYER v. NEBRASKA (1923) where he voted to uphold a law criminalizing teaching a foreign language to school children and most famously, in BUCK v. BELL (1927) upholding a Virginia eugenics law, where Holmes famously concluded that “three generations of imbeciles are enough.” However, his liberal bona fides in the free speech arena were forever forged. This chapter may be the strongest in the book, both in terms of commentary and selections excerpted. The volume of personal correspondence included is vast and the list of recipients impressive. Letters to and from such notables as Harold Lasky, Frederick Pollock, and Felix Frankfurter are included. These reveal fascinating exchanges about how Holmes viewed the legacy of these decisions. An epilogue which ties all of these sections together provides a fitting conclusion to this book as well.
This is a very well written and painstakingly researched book. It provides unusual access to an individual’s innermost thoughts and provides clarity on its subject that is truly unique. The linkages between sections are also particularly well done. That said, I am not sure who the intended audience is for this book. It would present very tough reading for undergraduate students, and the narrow focus would make it an unlikely choice for classroom use (at least at the undergraduate level). Academics and researchers with a specialization in speech issues will find this book very interesting but present a small audience to target. Perhaps the greatest strength of the book also may include its greatest weakness. The introductions to each section and the commentary which follows each selected reading are so thorough that often times it is unnecessary to read the chosen passages. There are no follow up questions to force the reader to analyze or draw any conclusions of their own, as Collins has done such a complete job. While the explanations are quite valuable, they sometimes make the actual writings of Holmes secondary in importance. However, this is a minor point in what is an otherwise excellent book. [*225]
ABRAMS v. UNITED STATES 250 U.S. 616 (1919).
BUCK v. BELL 274 U.S. 200 (1927).
FROHWERK v. UNITED STATES 204 U.S. 204 (1919).
LOCHNER v. NEW YORK, 198 U.S. 45 (1905).
MEYER v. NEBRASKA 262 U.S. 390 (1923).
PATTERSON v. COLORADO, 205 U.S. 454 (1907).
SCHENCK v. UNITED STATES 249 U.S. 47 (1919).
TURNER v. WILLIAMS 194 U.S. 279 (1904).
UNITED STATES v. DEBS, 249 U.S. 211 (1919).
© Copyright 2011 by the author, Paul I. Weizer.