Historical Perspectives On Holmes’s Dissent In Abrams
David M. Rabban · Seton Hall University eRepository (Seton Hall University) · 2021
During his four decades as a judge before his dissent in Abrams v. United States in November 1919, Oliver Wendell Holmes, Jr., mostly shared the general hostility of American judges to free speech claims.His decisions for a unanimous Supreme Court in March 1919, which upheld convictions for antiwar speech during World War I, resembled his earlier opinions restricting free speech in many contexts.Between March and November 1919, Holmes joined the growing number of Americans who had become much more sympathetic to freedom of expression during and immediately after the war.Holmes revealed his transformed views in his Abrams dissent even while asserting that they had not changed, but elements of his previous restrictive approach lingered. I. THE RESTRICTIVE JUDICIAL TRADITIONFrom the Civil War through World War I, the overwhelming majority of American judges rejected free speech claims.1 Many decisions did not even address free speech issues raised by litigants.The pervasive judicial hostility toward free speech included all levels of the state and federal judiciary and all regions of the United States.It extended to all varieties of expression, whatever the topic and whoever