Schauer on Holmes's Abrams Dissent

Frederick Schauer, University of Virginia School of Law, has posted Oliver Wendell Holmes, the Abrams Case, and the Origins of the Harmless Speech Tradition, which is forthcoming in the Seton Hall Law Review 51 (2021):

Oliver Wendell Holmes, Jr. (NYPL)

Oliver Wendell Holmes’s dissenting opinion in Abrams v. United States is rightly Abrams opinion, and to be published with the other symposium papers in the Seton Hall Law Review, I provide historical support for the foregoing claim, and suggest that one unfortunate consequence of Holmes’s opinion was in launching the “harmless speech” tradition that continues to dominate free speech rhetoric, doctrine, and theory.
celebrated for what Holmes said in his concluding paragraph about truth and the competition of the market. Earlier in his opinion, however, Holmes had described Abrams as an “unknown man” whose “silly leaflet” and “puny anonymities” could not possibly have caused any harm. But those characterizations were mistaken, and Holmes must have known they were mistaken. Abrams and his co-defendants were in fact significantly connected the many of the most violent radical anarchists, socialists, and union leaders during one of the most violent periods in American history. Holmes was correct in saying that Abrams and his activities should have been protected by the First Amendment, and it is also clear that the reactions against the radical activities of the time were tragic overreactions. Abrams should have been protected, however, not because he was harmless, but despite the harm that he and others like him did and might have caused. In this article, written for a symposium held at the Columbia Law School commemorating the one hundredth of the Abrams opinion, and to be published with the other symposium papers in the Seton Hall Law Review, I provide historical support for the foregoing claim, and suggest that one unfortunate consequence of Holmes’s opinion was in launching the “harmless speech” tradition that continues to dominate free speech rhetoric, doctrine, and theory.

–Dan Ernst.  H/t: Legal Theory Blog