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Oliver Wendell Holmes And Free Speech

3577 words - 14 pages

Close analysis of Oliver Wendell Holmes’ approach to the 1st Amendment freedoms of speech and press reveals a changing conclusion. The amendment that Holmes is associated with reads as such, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Some people, however, see protected speech as something else. Holmes himself defines the law as, “Prophecies of what the court will do in fact, and nothing more pretentious, are what I mean by the law (The Path of Law-OWH).” Written in 1897, this phrase serves as an excellent lens through which to view Holmes’ evolving approach to free speech. The man served as an American Supreme Court justice from 1902 through 1932. During this tenure he wrote countless opinions on nearly every facet of constitutional law. His prose read more like the philosopher he was at heart. His father was a writer of historical significance, and for a great portion of the life of Holmes Jr., the fame of his father eclipsed that of the own. One of the great goals of Holmes’ life was to distinguish himself with the same degree of accolade his father had attained (White-6.). His contributions to areas of free speech and press would provide him with the place in history he desired. In the end, the journey would leave Holmes as a protector of the 1st amendment, but his initial jurisprudence was quite restrictive on the individuals right to speak what he wills without fear of punishment. When one reads the above-mentioned definition of the law according to the Jurist, they should not be surprised that Holmes did a significant amount of mutation on the issue. The law was always a circumstantial endeavor according to Holmes. The real issue then becomes how and why Holmes’ approach to free speech changed. From his early opinion in the case of Patterson v. Colorado 205 U.S. 454, to his evolved dissent in Gitlow v. Nee York 268 U.S. 652, the evolution of Holmes’ jurisprudence is undeniable. However, the intricacies of this change, the factors spurring this change, and Holmes’ justification for his shift are not apparent at first glance.
The influencing factor, in Holmes’ early opinion, in the case of Patterson v. Colorado 205 U.S. 454 is perhaps the easiest to uncover. Holmes’ early stance on free speech, as evident in his opinion for the court, was heavily steeped in the work of historical legal authority Sir William Blackstone. Patterson was a state senator who advocated for the city of Denver’s right for Home Rule. The primarily republican Supreme Court in the state of Colorado invalidated the city’s ability to govern using home rule and infuriated Patterson. In response, Patterson used a newspaper, which he owned, to chastise the Justices. The state then brought charges against Patterson, accusing him of...

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