No Law: Intellectual Property in the Image of an Absolute First Amendment

By David L. Lange; H. Jefferson Powell | Go to book overview

CHAPTER 9

Justice Holmes and the Arrival of Balancing

IT is A COMMONPLACE in legal circles—and a reasonably accurate one—that modern First Amendment law has its origins in the response to the Espionage Act of 1917. The story is a familiar one in constitutional scholarship, its interest lying not just in the importance of the topic but in the great personalities out of whose clash of thought, temperament, and will the highly speech-protective First Amendment of the present day was created—Judge Learned Hand, Herbert Croly (editor of the leading progressive magazine The New Republic), political scientist Harold Laski, legal scholars Zechariah Chafee, Jr. and Ernst Freund, and—most importantly—Justice Oliver Wendell Holmes, Jr. It is, in particular, two of Holmes's opinions, filed in the series of Espionage Act cases which the Supreme Court decided in 1919—his opinion for the Court in Schenck v. United States and his dissent in Abrams v. United States1—that seem from a contemporary perspective to have raised the curtain on serious consideration of the First Amendment, so much so that earlier discussions are regularly ignored or treated as mere foils for Holmes and what came after Holmes. In Schenck (decided in March 1919), Justice Holmes rejected the claim that the Espionage Act was flatly—what a contemporary lawyer would call facially—unconstitutional, but in passing he stated, rather cryptically, that the “question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”2 By November, Holmes was treating the language of “clear and present danger” as a constitutional definition of the only circumstance under which the federal government may impose liability for speech without violating the First Amendment: “Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' “3

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