In 1919, the great Supreme Court Justice Oliver Wendell Holmes told his mostly conservative colleagues on the court that the actions of Jacob Abrams and four other Russian immigrants to print and distribute two leaflets condemning U.S. intervention in the Russian civil war did not present a real or immediate danger to the nation’s security.
In Abrams v. United States, Holmes wrote that “we should be eternally vigilant against attempts to check the expression of opinions . . . unless they so imminently threaten immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country.”
Apart from the young Justice Louis Brandeis, Holmes’ fellow justices were unimpressed. Abrams and his accomplices lost that case, 7-2, and were given stiff 20-year jail sentences. Mollie Steimer’s sentence was reduced to 15 years on account of being a woman.
But Holmes’ dissent, which turned 100 last year, lived on far longer than his colleagues crabbed view of the First Amendment. Holmes’ impassioned and righteous defense of dissent fueled our modern interpretation and subsequent application of the right to free speech and assembly.
The First Amendment, Holmes wrote, was created to give space to those who offer views counter to society’s prevailing positions or the positions of those in power. In writing his dissent in Abrams, Holmes declared that all views should have space within a “marketplace of ideas.” If such speech is accepted by the citizenry, than so be it. If it is condemned, let that happen as well. What made this country great, Holmes might have said, was its brave experiment in democracy: a government governed by its citizens. Integral to that experience was the First Amendment’s audacious proclamation conferring a right to free speech and assembly.
As the George Floyd protest have sadly made clear, police misconduct, excessive force and gratuitous violence appear to be commonplace. In Indianapolis, Buffalo and repeatedly in New York City, police appeared to take the mere presence of protestors as justification for rough treatment, the gratuitous use of pepper spray or arrests. Groups of heavily-armed police routinely struck peaceful protestors acting well within their constitutional rights to assemble and express dissent. In Tacoma, Wash., a young black protestor, died in policy custody of respiratory arrest due to physical restraint.
As the New York Times columnist Farhad Manjoo wrote on June 10, Black Lives Matter “activists set out to show that police brutality was pervasive. The police have now made that clear.” For much of the country, the notion that police are impartial arbiters dutifully applying the laws of the land was rudely shattered.
In a later Supreme Court case, U.S. v. Schwimmer (1929), just three years before he retired from the court, Holmes wrote probably his most compelling words in defense of the Constitution’s extraordinary defense of free speech: “if 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.”
Some 50 years after Holmes’ dissent in Abrams, the Supreme Court further expanded the application of free speech in a case of anti-Semitic and anti-black statements made at a small gathering of a Ku Klux Klan faction in a field in rural Hamilton County, Ohio. That case, Brandenburg v. Ohio (1969) established that speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite “imminent lawless action.”
Brandenburg went beyond Holmes’ “clear and present danger,” to assert that speech was free unless the words were “likely to produce” concrete lawless action. That was an enormously important decision for both police and protestors. While it makes clear the power of non-violent civil disobedience, it also underscores the sanctity of protest, the right to dissent. That the NYPD had been spying on Black Lives Matter activists for five years only served to throw oil on an already simmering fire.
Unlike in decades past, two-thirds of the country expressed their support for the George Floyd protests, an acknowledgement that do no incite “imminent lawless action” are well protected by the First Amendment. Unfortunately, police conduct at protests across the country revealed that too many police appeared to have missed that lesson.