How did Oliver Wendell Holmes in less than a year switch from saying arguing against the draft — that it was tantamount to falsely shouting fire in a crowded theater — to arguing that free speech is necessary for a marketplace of ideas seek out the truth. Oliver Wendell Holmes
In March 1919 Holmes wrote the unanimous opinion in Schenck v. U.S. Charles Schenck was convicted of violating the Espionage Act of 1917 for writing a pamphlet arguing that the draft violated the 13th Amendment prohibition against involuntary servitude.
Holmes reasoned that the pamphlet posed a “clear and present danger” and: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
In October 2019 Holmes did an about face and wrote a dissent in the 7-2 conviction of pamphleteer Jacob Abrams, a Russian immigrant, for writing that workers should go on strike to prevent the U.S. from going to war against Russia. In the case of Abrams v. U.S., Holmes wrote:
“Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
The NPR Radiolab recently broadcast a nearly hour-long discussion of the reason Holmes changed his stance so quickly. Scroll down to “What up Holmes.” It makes a compelling argument as to why a man in his late 70s made such an abrupt change in stance on the First Amendment right of free speech and changed how the courts and American treats speech and press rights.