Journal of Free Speech Law: "Gitlow as a Guide to Holmes," by Joseph Blocher
From the "Gitlow v. New York at 100" symposium, held this year at the Arizona State University Sandra Day O'Connor College of Law; other papers from that symposium will be published shortly.
The article is here; the Introduction:
The last First Amendment opinion ever written by free speech's first great judicial defender is often omitted from the pantheon of free speech cases. Of course there are exceptions, as scholars have explored how the Court's decision in Gitlow v. New York approached the issue of incorporation, its illustration of the "bad tendency" test, and what it shows about the sometimes-competing currents of First and Fourteenth Amendment doctrine at the time. But even the most thoughtful and thorough treatments of Justice Oliver Wendell Holmes' free speech jurisprudence have typically treated his dissent in Gitlow as "too compressed to be clear" or "better characterized as an example of Holmes' distinctive consciousness as a judge than as an attempt to forge a new path in First Amendment jurisprudence after Abrams [v. United States]."
The aim of this Essay is to argue that Holmes' dissent in Gitlow, brief as it is, provides a surprisingly comprehensive guide to some of the most important and consistent themes in his thought, and thus to the development of free speech law and American legal thought more broadly. That map emerges from careful parsing of the opinion's text—not only the famous-if-obscure declaration that "[e]very idea is an incitement," but the phrases that surround it. Close reading of Holmes' imaginative language is nothing new; entire free speech literatures have arisen around imagery like "the marketplace of ideas" and "falsely shouting fire in a theatre and causing a panic," to say nothing of doctrinal phrases like "clear and present danger." Such metaphors and aphorisms have been treated both as guides to understanding Holmes and as lodestars for the First Amendment. This Essay attempts the same for some of Gitlow's lesser-analyzed language.
The goal is not to wring a complete and coherent account of free speech law or theory out of Holmes' dissent, which consists of just 500 words spread out across a few paragraphs. The hope instead is to weave the Gitlow dissent into the broader tapestry of scholarship on Holmes and free speech law—to show that despite its brevity the opinion illustrates some of the fundamental intellectual and doctrinal currents at work in the early development of American free speech law. Holmes' words provide the necessary threads.
The dissent opened by re-endorsing the "clear and present danger" test Holmes had articulated six years earlier in Schenck v. United States, and which he said "was departed from" in Abrams v. United States—the case that occasioned Holmes's best-known and arguably most thorough statement of free speech principles. In Gitlow, he said "the convictions that I expressed in [Abrams] are too deep for it to be possible for me as yet to believe that it and Schaefer v. United States have settled the law." A proper application of the clear and present danger test, Holmes said, showed "that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views." The most straightforward reading of the Gitlow dissent, then, is a defense of the clear-and-present-danger test, a suggestion that it should be applied more stringently than it was in Abrams, and a clear rejection of the Gitlow majority's "bad tendency" test.
But it is the middle paragraph of Holmes' opinion that has gotten the overwhelming share of attention, and which will be the basis of the analysis here:
It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. 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.
Most Gitlow commentary has focused on the typically-for-Holmes quotable phrase "[e]very idea is an incitement." But just as one must investigate what Holmes meant by "truth" to make sense of Abrams' famous line that "the best test of truth is the power of the thought to get itself accepted in the competition of the market," so too must one consider the remainder of the Gitlow opinion to understand what Holmes meant by his invocation of ideas and incitement.
The remainder of this Essay focuses on three phrases in Gitlow that highlight important themes, some of which are standard fare in Holmesian scholarship and others of which are somewhat more speculative. The first is Holmes' much-debated relationship to pragmatism and its conceptualization of beliefs and acts, which illuminates and is illuminated by his statement in Gitlow that every idea "offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth." Analyzing Holmes as a realist is of course nothing new; here I mean to focus specifically on how his realism intersects with his views on rhetoric and reason.
The second, which has received far less attention, is the relationship in Holmes' thought—and in legal thought at the time—between rhetoric, reason, and realism. The essential metaphor (which was much more fundamental to Holmes than that of the marketplace) is that of fire, and the key line in Gitlow is "Eloquence may set fire to reason."
The third is how to understand speech harms—and, in particular, whether only harmless speech is entitled to protection ("whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration") and whether such harms are best assessed through broad legislative classifications or instead by judges in particular cases ("… before us …").
Finally, and admitting a parochial interest, the conclusion addresses how Holmes understood the roles of persuasion and change at the individual and social level ("If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community ….") as well as the reality and role—ever present for Holmes—of violence.
Some of these connections may have implications for doctrinal formulation and case resolution, for example in rejecting a clear line between ideas and acts or in framing questions at the level of individual cases rather than legislatively-drawn categories. More broadly, though, Gitlow provides something of a map to the rocky terrain of the Justice's mind, on which so much First Amendment law and theory have been constructed.