Vol. 35 No. 02 (October 2025) pp. 20-24THE SUPREME COURT AND THE PHILOSOPHER: HOW JOHN STUART MILL SHAPED U.S. FREE SPEECH PROTECTIONS, by Eric Kasper and Troy Kozma. Ithaca: Northern Illinois University Press, an imprint of Cornell University Press, 2024. 288pp. Cloth $44.95. ISBN: 97815017745150.
Reviewed by Cary Federman. Department of Justice Studies. Montclair State University. Email: federmanc@montclair.edu.
In 1918, Congress passed the Sedition Act, empowering federal authorities to arrest those who sought to “incite, provoke and encourage resistance to the United States.” In due course, the government convicted five men, including Jacob Abrams, for distributing leaflets supporting a general strike, Russian communism, and Marxist calls for working-class unity. The majority opinion in Abrams v. U.S. (1919) concludes with two points: (1) Congress has the power to pass such legislation, and (2) the jury acted according to the law. Justice Oliver Wendell Holmes’s dissent, however, stands out for more than its florid language. Earlier that year, Holmes authored three unanimous opinions on the same day — Schenck v. U.S. (1919), Frohwerk v. U.S. (1919), and Debs v. U.S. (1919) — each upholding convictions of war critics under the 1917 Espionage Act. What changed?
According to Eric Kasper and Troy Kozma, the former a political scientist and the latter a philosophy professor, Holmes applied a “Millian analysis” (p. 49) absent from the opinions in Abrams, Schenck, Frohwerk, and Debs. Millian analysis is the application of John Stuart Mill’s “harm principle” to speech cases plus Mill’s idea that no one person or group of people can claim certainty over an idea. Holmes wrote: “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” The “marketplace of ideas” metaphor is a modified version of Mill’s epistemological uncertainty principle, which states that because “[w]e can never be sure that the opinion we are endeavoring to stifle is a wrong opinion” (Mill 1978, 16), a “civilized community” (Mill 1978, 9) must tolerate dissenting opinions. Presuming America to be that kind of community, Holmes argued that the First Amendment must allow each individual the right to seek truth. This, Holmes wrote, “is the theory of our Constitution.”
In The Supreme Court and the Philosopher, Kasper and Kozma set out to examine nearly every free speech case the Supreme Court has decided since the end of World War I through a Millian lens. The book has nine chapters, plus an introduction and a conclusion. Chapter Two covers cases decided prior to Holmes’s embrace of Mill’s ideas in On Liberty. This was not a Millian era. Because the Supreme Court did not yet apply the Fourteenth Amendment to the states (it would do so in 1925), the states were free to regulate speech as they wished.
Chapter Three discusses the speech cases of the 1930s and 1940s. The Court wobbled a bit from Millian principles, except in labor disputes, the authors tell us. The problematic justice in this era (and the next) was Felix Frankfurter, the Holmesian believer in deference to Congress and in balancing values. In deciding speech cases, Frankfurter put federalism, public safety, and national security on one side and a “Millian approach” (p. 61) to free speech on the other. The results were not always favorable to free speech.
Chapter Four discusses the possibility of a Millian free speech jurisprudence centered around “preferred freedoms,” the idea “that any law touching communication is infected with presumptive invalidity” (Kovacs v. Cooper 1949, 90). Frankfurter was a persistent thorn in the side of the Millian libertarians, Hugo Black and William Douglas, because he denied that the First Amendment bestowed a preferred status on speech. In Kovacs v. Cooper, the Court upheld Kovacs’ conviction for emitting “loud and raucous noises” on a city street. From the authors’ standpoint (and Mill’s, they say), the outcome was unacceptable because it “allowed local majorities to control expression” (p. 83). Frankfurter, however, was unable to prevent the preferred position’s ascendancy. Just a few months later, the Court overturned Arthur Terminiello’s conviction for breach of the peace (Frankfurter dissented). Justice William Douglas applied “Millian reasoning” (p. 84) when he wrote: “a function of free speech under our system of government is to invite dispute.”
In Chapter Five, the authors write that the Cold War era was “a dark period regarding the freedom of speech” (p. 91). In Dennis v. U.S. (1949) the Court upheld Eugene Dennis’s conviction for conspiracy to overthrow the United States. Frankfurter’s concurrence defended congressional power to limit the speech of those who “teach, advocate, or encourage the overthrow” of the government. Justice Black dissented, adhering “to a Millian version of free speech” (p. 90). The 1950s, however, were not just draped in darkness. According to Kasper and Kozma, later in the decade, “Millian thought had begun to recover lost ground” (p. 96), as Justices Black and Douglas “maintained a Millian position” (p. 93) that found support among Warren Court justices in the next decade.
Chapter Six covers the 1960s. After Frankfurter’s retirement in 1962, the Court embraced a “Millian approach to important expression questions” (p. 104). In New York Times v. Sullivan (1964), Justice William Brennan vastly expanded press freedom by limiting the individual right to claim harm from libelous words, drawing influence from both Alexander Meiklejohn’s writings and Mill’s. Brennan’s Millian leanings also shaped the Court’s evolving stance on obscenity. Until the Warren Court, the states kept obscenity and pornography under a fairly tight lid. In Roth v. U.S. (1957), the Court held obscenity to be constitutionally unprotected, while also repudiating the common law rule governing obscenity. This had the effect of loosening state control over obscenity and pornography. In Memoirs v. Massachusetts (1966), the Court ruled that a book must be “utterly without redeeming value” to be banned, moving “the Supreme Court closer to Mill” (p. 110); in Redrup v. New York (1967), the Court declared unconstitutional three state obscenity laws (affecting about 35 other state laws) “bringing the Supreme Court very close to Mill’s libertarianism on this subject” (p. 111); and in Interstate Circuit v. Dallas (1968), the Court held unconstitutional a city ordinance that classified some films as unsuitable for minors. Kasper and Kozma see this opinion as “Millian” because the Court affirmed that “minors have some expressive rights” (p. 111), even as the authors note that Mill’s theory of liberty applies only to those “in the maturity of their faculties” (Mill 1978, 9).
Chief Justice Earl Warren’s final year on the Court – 1969 – was, according to the authors, “the most Millian year on the Supreme Court” (p. 115). In Brandenburg v. Ohio, the Court created the “imminent lawless action” test to determine when speech becomes incitement, and in Tinker v. Des Moines, the Court extended students’ rights to protest in school. Justice Black dissented in Tinker, finding the students’ behavior disruptive. Kasper and Kozma write that both sides “argued over Millian principles” (p. 120), raising the question: were the justices poor Millian scholars or were Mill’s idea regarding the “liberty of thought” (Mill 1978, 12) unclear? The authors touch upon this topic but do not fully explore it.
In Chapter Seven, Nixon appointees made the Burger Court take a “step backward” (p. 122) on free speech. The Court limited sexual expression in Miller v. California, and expressed “anti-Millian” (p. 136) ideas in FCC v. Pacifica Foundation, in which the Court upheld an FCC regulation of obscene words said on the radio. But the Millians had some success, upholding “Millian themes related to democracy, truth, and autonomy” (p. 124) in Cohen v. California, in which the Court overturned Paul Robert Cohen’s conviction for wearing a jacket in a courthouse with the words “Fuck the Draft” on it. The Millian Justice Black dissented.
Chapter Eight covers the Rehnquist Court’s free speech jurisprudence. During this time, the Court greatly expanded protections for commercial speech, and struck down two congressional regulations involving child pornography on the internet. The authors tell us that these decisions were Millian because the Court justified their decisions by resorting to Mill’s harm principle and the marketplace of ideas metaphor.
In Chapter Nine, the authors continue their examination of Mill’s influence on free speech jurisprudence. In U.S. v. Stevens (2010), the Roberts Court overturned a congressional ban on depictions of animal cruelty online. The majority opinion upholds the Millian idea, the authors write, that there is a difference between the expression of an idea and “engaging in the underlying conduct that causes harm” (p. 175). The authors then apply Millian reasoning to Brown v. Entertainment Merchants Association (2011), in which the Court “struck down a state law banning sales of violent video games to minors” (p. 181), Matal v. Tam (2017), in which the Court struck down a federal regulation of language used in trademarks, and Packingham v. North Carolina, in which the Court struck down a state law banning sex offenders from accessing the internet.
In their conclusion, the authors write that “there is a greater embrace of Mill today on the Supreme Court than ever before” (p. 199). There is no doubting this. But such a singular focus has its advantages and disadvantages. On the one hand, this is one of the most thorough treatments of free speech one can encounter. Moreover, rather than just stating the facts of each case, the authors subject cases to a Millian analysis that contributes to First Amendment scholarship. This book, then, not only belongs in one’s First Amendment library, it can be used in both undergraduate and graduate-level courses on free speech and civil liberties.
While these strengths are considerable, they are accompanied by some weaknesses that merit attention. Because the authors’ sole focus is on Mill’s influence on the First Amendment, they are forced to emphasize only the elite influences that planted “the Millian seed” (p. 50) in Holmes’s free speech jurisprudence – the law professors Zechariah Chafee and Ernst Freund, and the English socialist and Stalin apologist Harold Laski, for example – while ignoring the role of labor and other leftwing interest groups that influenced the Court’s free speech progressivism over time (Weinrib 2016; Steele 1999).
The authors’ deep reliance on Mill also creates a problem within the history of ideas. The authors do not address the differences between Mill’s utilitarianism and Jeremy Bentham’s. And they fail to distinguish between Mill’s quasi-rule utilitarianism, and its modification in the post-World War II era by Kantian notions of dignity and autonomy, and libertarianism. The authors needed to say why Mill, as a utilitarian, would have been indifferent to the word “fuck” in public or would have approved of images of animal cruelty.
Finally, there is the problem of the Millian “theory of our Constitution” that Holmes adopted. “Every species of government has its specific principles,” wrote Thomas Jefferson (1984, 211). Undergirding ours is Article IV’s guarantee to each state of a republican form of government and the Declaration of Independence’s claim that natural equality is a “truth” “we hold…to be self-evident.” Yet in Gitlow v. New York, Holmes wrote: “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” (1925, 672). Holmes’s indifference to the ideas and institutions that govern and shape American political life contradicts his dissent in Abrams and Mill’s idea that the pursuit of truth is necessary for free speech. Indeed, Holmes now denies to free speech any purpose – and to judges any function in defending democracy. Holmes was silent about this as a political problem. The question is: was Mill?
CASES:
Abrams v. United States, 250 U.S. 616 (1919).
Brandenburg v. Ohio, 395 U.S. 444 (1969).
Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011).
Cohen v. California, 403 U.S. 15 (1971).
Debs v. United States, 249 U.S. 211 (1919).
Dennis v. United States, 341 U.S. 494 (1951).
FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
Frohwerk v. United States, 249 U.S. 204 (1919).
Gitlow v. New York, 268 U.S. 652 (1925).
Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968).
Kovacs v. Cooper, 336 U.S. 77 (1949).
Matal v. Tam, 582 U.S. 218 (2017).
Memoirs v. Massachusetts, 383 U.S. 413 (1966).
Miller v. California, 413 U.S. 15 (1973).
New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
Packingham v. North Carolina, 582 U.S. 98 (2017).
Redrup v. New York, 386 U.S. 767 (1967).
Roth v. United States, 354 U.S. 476 (1957).
Schenck v. United States, 249 U.S. 47 (1919).
Terminiello v. Chicago, 337 U.S. 1 (1949).
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969).
United States v. Stevens, 559 U.S. 460 (2010).
REFERENCES:
Jefferson, Thomas. 1984. “Notes on the State of Virginia”. In Thomas Jefferson: Writings, ed. Merrill Peterson, 123-325.
Mill, John Stuart. 1978 [1859]. On Liberty, ed. Elizabeth Rapoport. Indianapolis: Hackett.
Steele, Richard. 1999. Free Speech in the Good War. New York: St. Martin’s Press.
Weinrib, Laura. 2016. The Taming of Free Speech: America’s Civil Liberties Compromise. Cambridge: Harvard University Press.
© Copyright 2025 by author, Cary Federman.
