Oliver Wendell Holmes and Free Speech

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Close analysis of Oliver Wendell Holmes’ approach to the 1st Amendment freedoms of speech and press reveals a changing conclusion. The amendment that Holmes is associated with reads as such, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Some people, however, see protected speech as something else. Holmes himself defines the law as, “Prophecies of what the court will do in fact, and nothing more pretentious, are what I mean by the law (The Path of Law-OWH).” Written in 1897, this phrase serves as an excellent lens through which to view Holmes’ evolving approach to free speech. The man served as an American Supreme Court justice from 1902 through 1932. During this tenure he wrote countless opinions on nearly every facet of constitutional law. His prose read more like the philosopher he was at heart. His father was a writer of historical significance, and for a great portion of the life of Holmes Jr., the fame of his father eclipsed that of the own. One of the great goals of Holmes’ life was to distinguish himself with the same degree of accolade his father had attained (White-6.). His contributions to areas of free speech and press would provide him with the place in history he desired. In the end, the journey would leave Holmes as a protector of the 1st amendment, but his initial jurisprudence was quite restrictive on the individuals right to speak what he wills without fear of punishment. When one reads the above-mentioned definition of the law according to the Jurist, they should not be surprised that ...

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...olmes." 9 June 1922. Box 14, Folder 12, Harvard Law School Library.

Holmes, Jr., Oliver. The Common Law. New York, Ny.Dover Publications, 1991.

Holmes, Jr., Oliver. The Path of the Law. New York, Ny. Kessinger, 2004.

Hand, Learned. "Letters From Learned Hand to Oliver Wendell Holmes." 22 June 1918. Box 43, Folder 30, Harvard Law School Library.

Pound, Roscoe. “Interest of Personality.” Harvard Law Review 28 (1928).

Rabban, David M. Free Speech in Its Forgotten Years. New York: The University of Cambridge P, 1997

Court Cases Cited

Abrams v. United States, 250 U.S. 616 (1919)

Debs v. United States, 249 U.S. 211 (1919)

Frohwerk v. U.S., 249 U.S. 204 (1919)

Gitlow v. New York, 268 U.S. 652 (1925)

Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917)

Patterson v. Colorado, 205 U.S. 454 (1907)

Schenck v. United States, 249 U.S. 47 (1919)
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