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Holmes’s Understanding of His Clear-and-Present-Danger Test

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Vincent Blasi discusses Justice Holmes’s rationale for the “clear-and-present-danger” test, focusing on why he emphasized imminence as a key factor in determining when speech poses a real threat to public safety.

Image courtesy of interviewee. October 11, 2024

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This video discusses a centennial celebration of the influential Holmes opinion, focusing on its historical, philosophical, and contemporary significance. The speaker reflects on Oliver Wendell Holmes Jr.'s life, noting his background, education, and pivotal experiences during the Civil War, which shaped his worldview. Holmes served as a prominent Supreme Court justice known for his narrow interpretation of constitutional rights, particularly concerning economic regulations and free speech.

Holmes's famous dissent in the Abrams case is highlighted, where he advocated that only imminent harm can justify regulating speech, emphasizing the value of dissent in the "marketplace of ideas." He introduced the concept that free speech fosters an adaptive society through the dialogue of diverse opinions. The speaker argues that Holmes's emphasis on immediate harm over remote harm is apparent in his legal philosophy, which is grounded in realism and the scientific method, shaped by his upbringing and experiences.

Several reasons are posited for Holmes's reluctance to consider long-term harms in regulating speech, such as the unpredictability of remote harms, issues of moral responsibility for direct actions, and the importance of independent thinking in a stable, adaptive society. This video concludes with a call for further exploration of Holmes's ideas, particularly regarding how free speech can adapt to societal needs while navigating the complexities of harm and governance.

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Here are five key points derived from the video:

1. **Historical Convideo of Oliver Wendell Holmes Jr.**: Holmes, a prominent figure in the American legal landscape, was born in 1841 and had a significant career that included serving in the Civil War, experiencing life-altering injuries, and influencing legal philosophy. His early exposure to intellectual circles, including friendships with Charles Sanders Peirce and William James, was pivotal in shaping his pragmatic approach to law and life.

2. **Philosophy of Free Speech**: Holmes is best known for his opinions on free speech, particularly in the Abrams case, where he asserted that only "imminent harm" could justify restrictions on speech. He famously introduced the metaphor of the "marketplace of ideas," emphasizing that the competition of ideas serves a vital role in truth-seeking and discourse within society.

3. **Critique of Long-term Harm Assessments**: Holmes advocated for a cautious approach to regulating speech based on potential long-term or remote harms. He believed that such predictions were speculative and that the energy of harmful ideas often dissipates over time, making it unjust to restrict speech based on uncertain future outcomes.

4. **Limitations on Government Regulation**: Holmes maintained that regulation should focus on immediate harms rather than presumed long-term effects, arguing that the government does not hold the authority to penalize speech that does not directly infringe on individual rights. This perspective reflects his skepticism about government overreach in matters of expression.

5. **Dynamic Understanding of Truth**: Holmes viewed truth as a dynamic and evolving concept, shaped by societal struggles and adaptation to changing conditions. He was skeptical of absolute truths and believed that free and open discourse enabled societies to navigate their beliefs and adapt over time, reinforcing the idea that restrictions on speech could stifle the collective ability to engage in necessary debates.

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Here are key quotes extracted from the video that capture significant points made about Justice Oliver Wendell Holmes, his views on free speech, and related philosophical ideas:

1. **Holmes's Legacy and Background:**
- "Holmes is probably the most famous Supreme Court justice who ever sat on the course."
- "He graduated from Harvard in 1860... was wounded three times... and miraculously he did recover."

2. **Influence of Experience on Philosophy:**
- "Many people think that his view of life was greatly affected by... his regiment was right at the point of Pickett's charge at Gettysburg."
- "After he came back from the war, he had philosophical tastes... part of a discussion group that included... Charles Sanders Peirce and William James."

3. **Constitutional Philosophy:**
- "He was famous for being, having a very narrow view of constitutional rights."
- "His basic philosophy was that we should be very cautious about finding laws to be unconstitutional."

4. **Views on Free Speech:**
- "Only dangers of imminent harm can be a justification for regulating speech."
- "He introduced the metaphor of the marketplace of ideas... the best sense of truth is the power of the thought to get itself accepted in the competition of the market."

5. **On Dissenting Speech:**
- "[Dissenting speech] serves a real function... even when it might be wrong or unpersuasive."
- "Holmes... saw free speech as a kind of ongoing process of dynamic understanding at the collective level."

6. **Critique of Long-term Harm Regulation:**
- "One argument for saying... only look at the immediate effects, don't look at the long-term effects."
- "The energy that's necessary for a bad idea to cause harm tends to dissipate over time."

7. **Balance of Responsibility and Harm:**
- "There's more responsibility when you're saying things that you have every reason to believe will cause harm right away."
- "Speakers don't have enough notice of what they can say... they can be defined in different ways."

8. **Implications for Democracy:**
- "The very form of government we're committed to... depends on having a mobile public opinion and having policies that can be changed in response to public opinion."

9. **Freedom of Thought:**
- "Once you allow government to regulate on the basis of remote harms, it is much more dangerous... to free thought."
- "Holmes valued stability a great deal... the most stable society is the society that can adjust particularly to changing conditions."

10. **Overall Philosophy on Speech:**
- "His notion of truth was modest... life was about struggle."
- "Free speech contributes to better struggle because it makes people understand that other people think differently."

These quotes collectively illuminate Holmes's views on law, free speech, the role of dissent, and the philosophical underpinnings that shaped his legal thinking.

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I was one of three people who organized a centennial

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celebration of the famous Holmes opinion.

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And so we had a full day of, papers being delivered on,

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various aspects, the historical background

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and the philosophical assumptions,

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and the applications to modern problems and so forth.

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Uh, I was on a panel with three others,

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that talked about, Holmes's notion of harm

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and, in particular, why only count,

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immediate harms, not remote harms.

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And so that was the,

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but that was the setting for the inquiry.

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Holmes is probably the most famous Supreme Court justice

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who ever sat on the course.

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He'd certainly be one of the two or three.

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Uh, he was born in 1841.

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His father was a very famous poet who also was the,

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dean of the Harvard Medical School.

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Uh, Holmes, graduated from Harvard in 1860

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and immediately went off to fight in the Civil War.

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He was wounded three times, left for,

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on the battlefield at anti teem.

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The person who was doing the triage decided he was

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not worth trying to save.

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It was hopeless, but there was an orderly who said, no.

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I think he might, he might make it.

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So they dragged him to a farmhouse.

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And miraculously he did, recover.

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Uh, but many people think that his view

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of life was greatly affected by

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the mass carnage that he saw.

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Uh, his regiment was right at the point

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of Pickett's charge at Gettysburg, where he was an officer.

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He was a captain. Two thirds of the officer core

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of his regiment was killed that day at, Gettysburg.

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Uh, so his,

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after he, came back from the war,

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he had philosophical tastes,

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and some of his friends included, Charles Sanders purse.

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And William James, often thought to be the founders

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of the philosophy of pragmatism.

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And Holmes was part of a discussion group

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that included those two and several others.

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Uh, they, they met for about three

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or four years talking over these big questions of philosophy

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and, you know, essentially giving a kickstart to the,

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of philosophy of, pragmatism.

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Uh, he taught for a little bit at Harvard Law School,

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but was appointed, to the, Supreme Court

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of Massachusetts where he served for 20 years.

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It was a very distinguished common law judge, you know,

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resolving personal injury cases and contract disputes

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and property disputes and things of that sort.

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Uh, and then after 20 years,

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he ended up being the Chief Justice of Massachusetts.

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After about 20 years of that, he was appointed to the,

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United States Supreme Court by Theodore Roosevelt.

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Uh, and, for most of his time on the Supreme Court,

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he was famous for being, having a very narrow view

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of constitutional rights,

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particularly the great issues involved rights to economic

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challenges by businesses against, being required

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to pay minimum wages or limiting maximum hours

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or other forms of economic regulation that were popular

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in those years, say between 1,919 20.

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And his basic philosophy was

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that we should be very cautious about finding laws

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to be unconstitutionally believed in majority rule.

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Um, and then, during the disputes over World War I,

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you know, there was fierce debate in a lot of prosecutions

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of people who claimed that the draft was unconstitutional

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and that the war was being fought for illicit motives,

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to protect Wall Street prophets.

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And, you know, many pacifists thought the US didn't have

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vital interests in the war in Europe and so forth.

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Uh, and there was a lot of, prosecution of,

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speakers for their criticisms of the war

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and their, criticisms of the draft.

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Um, and the first wave of cases, that came

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to the Supreme Court while Holmes was on it.

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He wrote the opinions upholding,

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criminal sentences for people who had

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basically called the graft unconstitutional

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and criticized the motives of the people

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who were promoting the war, and didn't surprise people

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'cause he had such a, a narrow view of,

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constitutional rights.

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Uh, but eight months later,

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after he saw all sorts of persecution of what seemed like

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naive pa, possibly,

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but not very powerful, war critics, there was a sort

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of second wave of prosecutions.

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Uh, and for one of them, in the, Abrams case,

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he surprised everybody by disagreeing.

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The majority upheld the conviction.

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One of them was a 20 year conviction.

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Most of the others were 15 year convictions for

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what seems like kind of boilerplate standard war criticism.

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And that was too much for Holmes.

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And he, descended in the Abrams case,

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and wrote his, you know,

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what's almost surely the most famous opinion

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that anybody on the Supreme Court ever wrote

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about the value of free speech?

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Uh, and it's where he insisted that, only,

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dangers of imminent harm can be a justification

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for regulating speech.

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And the kind of harm, if any,

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that was gonna follow from these critics was more remote.

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It was gonna take time to develop. And he gave

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His reasons why he thought only

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imminent harms should count.

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Um, and he's most famous in that opinion

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for introducing the metaphor of the marketplace of ideas.

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And his point being, the, the best sense

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of truth is the power of the thought

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to get itself accepted in the competition of the market.

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And so that a real function is served by dissenting speech,

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even when it might be wrong or unpersuasive.

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It forces people who take the opposite view to,

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clarify their thoughts

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or to perhaps, modify them a little bit.

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And, you know, he basically saw free speech as a kind

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of ongoing process

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of dynamic understanding at the collective level.

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Uh, and that metaphor caught on.

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And, he became a kind of hero to free speech advocates.

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A lot of it had to do with his eloquence.

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He just had a way of saying things in memorable ways that,

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made his opinions very powerful.

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I'll try to both report my thinking

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and report what is probably the most widely held

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views on these matters.

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But, but the, you know, one argument for, for, you know,

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and putting the question starkly, everybody has

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to concede that some harms take time to develop that.

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Uh, you know, some speech has immediate effects,

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but some speech plants the seed,

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or, you know, starts this process of, changes of opinion

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that can turn out to be very harmful, changes of opinion.

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So, one argument for saying,

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well only only look at the immediate effects,

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don't look at the long-term effects.

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And one, the, probably the most famous argument is the,

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the best way to contain bad ideas is to refute them.

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Uh, when you regulate them, you cause a lot of resentment,

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and you don't actually, get to the actual substance of,

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why people would say this

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and why they would think it was harmful and so forth.

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Uh, and so a lot of people interpret Holmes

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as market metaphor as being about the, you know, preference

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for refutation rather than coercive, regulation.

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I don't think that that's, it may be a good reason

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for some people to think you should never take into account

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long-term harms, but I don't think it works for Holmes.

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My, my articles interpretative rather than normative.

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I'm not trying to argue what's the best way

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to look at these questions, it's just how

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to try to understand Holmes.

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But Holmes, was, you know, a realist.

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He was sort of proud about his description of the world

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as being all about force.

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And, you know, everybody is pushing their view

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to serve their own interests.

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And the, the, what what turns out

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to prevail is not what's necessarily the most persuasive

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or the wisest, but that generates the most force behind it.

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And he was very struck by how,

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much people hold on to ideas

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that have been very successfully, refuted,

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that people are stubborn

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or people have attachments to their ideas

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that are not just entirely based on their truthfulness

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or their persuasiveness.

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So that Holmes is almost the last person that you'd wanna

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assume would believe that, the best solution is,

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you know, a conflicting debate

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where refutation can contain the bad, ideas.

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Uh, something that sounds more like a Holmes

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and reason would be a second, argument for,

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not allowing regulation of immediate harms.

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And that's the, the, the, I mean,

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for only allowing regulation of immediate harms

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and not long term, and I'll call 'em remote, is that,

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the energy that's necessary for a bad idea

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to cause harm tends to dissipate over time.

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People at first are all fired up and very motivated

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and activated and so forth,

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but it's very hard to sustain that kind of energy so

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that if your real concern is not what's gonna happen

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right now or tomorrow, or in a very short time span,

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but what's gonna happen in a long, in the long run

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because of somebody saying this in this way,

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usually a very good bet is that the energy won't

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be sustained, and

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therefore, even something

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that looks like it's quite dangerous for long-term purposes,

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probably is not gonna be that dangerous, and

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therefore you should let the person, speak the harm is

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gonna be overrated, so to speak.

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A third reason is that if you're reading Holmes carefully,

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it's only for a limited kind of speech

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00:10:56.035 --> 00:10:58.485
that he thought you couldn't take into a car

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point part remote harm.

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00:11:00.225 --> 00:11:04.285
So for a lot of regulation, you can, in his view,

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regulation, for example, of what public officials can say

207
00:11:09.065 --> 00:11:14.025
or what access protestors might have to, public spaces

208
00:11:14.285 --> 00:11:16.305
to make their points and so forth,

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00:11:16.735 --> 00:11:20.745
that he was only talking about criminal prosecution,

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00:11:21.005 --> 00:11:25.585
for, harms that do not involve harms

211
00:11:25.585 --> 00:11:26.585
to private rights.

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00:11:26.645 --> 00:11:28.385
If you can identify individuals

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00:11:28.445 --> 00:11:31.065
who are endangered in the middle run

214
00:11:31.085 --> 00:11:34.025
or long run, he allowed that regulation.

215
00:11:34.095 --> 00:11:35.265
It's only when

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what you're invoking is the public good, the common good.

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00:11:39.205 --> 00:11:42.505
And for that, he thought only when it's an immediate harm,

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00:11:42.845 --> 00:11:45.105
not a, a long term, harm.

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00:11:45.765 --> 00:11:49.505
Uh, a fourth reason is that it's harder to predict

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or to measure, remote

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Harms.

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Uh, it's, it's more speculative than trying to predict

223
00:11:58.225 --> 00:12:01.925
or measure what appear to be immediate harms.

224
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There are just, too many variables, under, you know,

225
00:12:06.125 --> 00:12:07.925
even giving weight to the variables as

226
00:12:07.925 --> 00:12:10.405
to speculative and so forth.

227
00:12:11.105 --> 00:12:13.285
And that's important for Holmes

228
00:12:13.385 --> 00:12:15.645
and trying to understand him in that.

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You have to realize maybe

230
00:12:16.685 --> 00:12:19.365
because his, his father was a doctor

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00:12:20.065 --> 00:12:22.965
and also was a important medical scholar,

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it really actually made a,

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00:12:24.605 --> 00:12:26.365
a break a breakthrough in his medical research

234
00:12:27.075 --> 00:12:31.545
that Holmes always said that the scientific method,

235
00:12:31.845 --> 00:12:35.185
was a very important, idea in his mind.

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00:12:35.425 --> 00:12:39.185
Darwin's origin of species came out when he was,

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00:12:39.255 --> 00:12:40.665
undergraduate at Harvard,

238
00:12:41.325 --> 00:12:43.105
and it just electrified the campus.

239
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Uh, and, you know, all all,

240
00:12:45.665 --> 00:12:48.105
and a lot of it was students going to their professors

241
00:12:48.165 --> 00:12:52.065
and saying, well, here, you know, we understand evolution.

242
00:12:52.125 --> 00:12:55.545
Now you're, what you're teaching us is not evolution, and

243
00:12:55.685 --> 00:12:58.665
and it's not consistent with this theory of evolution.

244
00:12:58.725 --> 00:13:00.585
And a lot of the teachers were, you know,

245
00:13:00.585 --> 00:13:01.705
rigid in their beliefs

246
00:13:01.845 --> 00:13:05.025
or had theocratic grounds for their beliefs and so forth.

247
00:13:05.025 --> 00:13:08.665
So there was a kind of real campus dispute undergraduates

248
00:13:08.665 --> 00:13:12.105
versus professors on this, you know, scientific method

249
00:13:12.125 --> 00:13:14.465
and what do you do with Darwin's findings and so forth.

250
00:13:14.685 --> 00:13:16.265
And Holmes was right in the middle of that.

251
00:13:16.265 --> 00:13:19.945
And he was, you know, a great believer in Darwin and, and,

252
00:13:20.005 --> 00:13:21.385
and the theory of evolution,

253
00:13:21.725 --> 00:13:24.225
and that was a lifelong, interest

254
00:13:24.225 --> 00:13:26.025
of his was the theory of evolution.

255
00:13:26.525 --> 00:13:29.345
Um, and, and so, the,

256
00:13:29.365 --> 00:13:31.505
and then part of the, you know, this commitment

257
00:13:31.505 --> 00:13:34.785
to the scientific method was that, you know, if you,

258
00:13:34.805 --> 00:13:37.425
if you're o only predicting remote harms

259
00:13:37.425 --> 00:13:39.225
and you can't do that in a rigorous way,

260
00:13:39.225 --> 00:13:40.225
you just don't have evidence,

261
00:13:40.255 --> 00:13:42.905
it's too speculative scientific method.

262
00:13:43.135 --> 00:13:44.505
Part of him rebelled.

263
00:13:45.085 --> 00:13:49.585
And that's one possible explanation for why he was reluctant

264
00:13:49.585 --> 00:13:52.305
to take into account predicted remote harms

265
00:13:52.305 --> 00:13:53.505
from, speech.

266
00:13:53.565 --> 00:13:56.745
And I think that does, fits with other values of his.

267
00:13:57.325 --> 00:13:59.715
Um, fifth reason would be that

268
00:14:00.805 --> 00:14:03.525
speakers don't have enough notice of what they can say.

269
00:14:03.685 --> 00:14:06.765
I mean, if, if, if they know they're gonna be subject

270
00:14:06.785 --> 00:14:09.045
to punishment for the immediate consequences,

271
00:14:09.155 --> 00:14:11.645
they probably have a pretty good way themselves

272
00:14:11.705 --> 00:14:14.325
of predicting what the immediate consequences might be.

273
00:14:14.325 --> 00:14:16.605
They're, they might care most about the immediate

274
00:14:16.605 --> 00:14:19.285
consequences, but at least they have notice of that

275
00:14:19.285 --> 00:14:21.325
what they're doing is thought by the society

276
00:14:21.385 --> 00:14:23.365
to be dangerous and so forth.

277
00:14:23.825 --> 00:14:26.605
But if you're talking about long-term harms,

278
00:14:26.635 --> 00:14:28.445
they can be defined in different ways.

279
00:14:28.615 --> 00:14:31.085
There are all sorts of other contingencies

280
00:14:31.115 --> 00:14:33.085
that come into a play, into play.

281
00:14:33.785 --> 00:14:36.685
And, it means that speakers are just guessing.

282
00:14:36.685 --> 00:14:39.805
And of course, you, you want speakers trying

283
00:14:39.805 --> 00:14:43.485
to assert their rights to have an ability to assess

284
00:14:43.625 --> 00:14:46.805
how dangerous is it gonna be on this occasion to say this?

285
00:14:47.385 --> 00:14:50.965
And it's much harder if you allow speakers to be regulated

286
00:14:51.145 --> 00:14:53.485
On the basis of the court's predictions

287
00:14:53.485 --> 00:14:56.605
of long-term harm rather than, immediate harm.

288
00:14:57.265 --> 00:15:00.365
The sixth reason somewhat related is if you think you should

289
00:15:00.365 --> 00:15:04.085
only be punishable when you bear moral responsibility,

290
00:15:04.085 --> 00:15:08.205
because if your agency in creating the harm, you might think

291
00:15:08.205 --> 00:15:13.125
that long-term harms follow from too many contingencies

292
00:15:13.155 --> 00:15:17.245
that intervene, for the harms to be realized,

293
00:15:17.505 --> 00:15:20.485
the different things that could go either way have

294
00:15:20.485 --> 00:15:22.605
to go this way rather than that way and so forth.

295
00:15:22.715 --> 00:15:26.765
There's more responsibility when you're saying things

296
00:15:26.765 --> 00:15:27.925
that you have every reason

297
00:15:28.045 --> 00:15:29.685
to believe will cause harm right away.

298
00:15:29.785 --> 00:15:31.485
So there may be, you know,

299
00:15:32.285 --> 00:15:34.565
arguments based on, the, the right.

300
00:15:34.605 --> 00:15:38.125
A speaker has not to be held responsible for situations

301
00:15:38.125 --> 00:15:40.205
where they don't have the dominant agency.

302
00:15:41.305 --> 00:15:44.485
Uh, a seventh reason might be that,

303
00:15:45.425 --> 00:15:49.765
if you allow long-term dangers to count,

304
00:15:50.385 --> 00:15:53.925
the most common long-term danger in terms of the history

305
00:15:53.925 --> 00:15:56.725
of regulating speech is to prosecute people

306
00:15:56.825 --> 00:15:58.765
for what's called seditious libel.

307
00:15:58.765 --> 00:16:01.325
That is libeling the government itself,

308
00:16:01.505 --> 00:16:02.925
or government policies.

309
00:16:03.755 --> 00:16:08.335
And the, assumption of,

310
00:16:08.765 --> 00:16:12.535
democracy or republican form of government,

311
00:16:12.795 --> 00:16:17.655
or government based on public opinion, is that

312
00:16:18.275 --> 00:16:19.935
you have to have freedom to

313
00:16:21.365 --> 00:16:25.175
criticize the current government, the current officers,

314
00:16:25.235 --> 00:16:27.535
the current policies and so forth.

315
00:16:27.645 --> 00:16:29.935
It's just, you know, the very form

316
00:16:29.955 --> 00:16:31.815
of government we're committed are to,

317
00:16:31.815 --> 00:16:33.575
with popular sovereignty.

318
00:16:33.675 --> 00:16:37.415
We, the people of the United States create this constitution

319
00:16:38.205 --> 00:16:41.855
depends on having a mobile public opinion

320
00:16:42.675 --> 00:16:44.295
and having policies

321
00:16:44.295 --> 00:16:47.215
that can be changed in response to public opinion.

322
00:16:47.955 --> 00:16:50.775
And that requires, saying

323
00:16:51.395 --> 00:16:53.215
bad things about the current governors

324
00:16:53.215 --> 00:16:55.815
and their policies more so than other forms

325
00:16:55.835 --> 00:16:58.975
of government like monarchy, for example, depends

326
00:16:59.075 --> 00:17:00.615
so much on public opinion

327
00:17:00.955 --> 00:17:04.655
and having a kind of mobile, understanding in the,

328
00:17:04.655 --> 00:17:06.535
in the, populace.

329
00:17:06.535 --> 00:17:09.895
So that would be one reason to, to say

330
00:17:09.925 --> 00:17:12.375
that long-term remote harms can't count.

331
00:17:12.375 --> 00:17:15.495
They're in too much tension with seditious libel.

332
00:17:16.035 --> 00:17:20.175
And then finally, and I think maybe the most important is

333
00:17:20.445 --> 00:17:23.855
that, it's inconsistent with freedom of thought.

334
00:17:24.775 --> 00:17:29.195
So it's the value of the speech rather than the,

335
00:17:29.855 --> 00:17:31.395
limited harm.

336
00:17:32.455 --> 00:17:33.675
That's the key here.

337
00:17:34.185 --> 00:17:38.955
That speech that is likely to cause harm instantly

338
00:17:40.405 --> 00:17:44.755
is likely to be less value in the scheme of things

339
00:17:44.815 --> 00:17:46.435
to the development of ideas.

340
00:17:47.175 --> 00:17:48.715
You know, it may be important to

341
00:17:48.715 --> 00:17:50.405
Getting people to act in the moment,

342
00:17:51.405 --> 00:17:55.745
but in terms of making, what makes speech in some views,

343
00:17:56.445 --> 00:17:59.185
so especially valuable is

344
00:17:59.725 --> 00:18:04.665
the way it generates long-term, benefits rather than,

345
00:18:04.845 --> 00:18:08.545
you know, immediate kind of, you know, consequences.

346
00:18:08.775 --> 00:18:11.065
Once you allow government to regulate on the basis

347
00:18:11.065 --> 00:18:13.505
of remote harms, it is

348
00:18:14.175 --> 00:18:17.145
much more dangerous when the government is doing that

349
00:18:17.965 --> 00:18:19.785
to free thought that, you know,

350
00:18:19.885 --> 00:18:22.265
people are gonna be more cautious in what they think

351
00:18:22.325 --> 00:18:23.985
and when they express their thoughts

352
00:18:24.575 --> 00:18:28.705
when they know they're possibly liable for the middle term

353
00:18:28.725 --> 00:18:30.585
or long term consequences.

354
00:18:31.445 --> 00:18:33.545
See, and that's what I think a lot of people don't

355
00:18:34.235 --> 00:18:38.145
understand about Holmes, because he was not an idealist

356
00:18:38.285 --> 00:18:41.425
and he didn't believe in individual personal autonomy.

357
00:18:41.525 --> 00:18:44.945
He didn't think the, the freedom to say what you think

358
00:18:45.445 --> 00:18:49.065
or even to develop your thought is part of personhood.

359
00:18:49.095 --> 00:18:52.745
It's just so important to the individual, partly

360
00:18:52.945 --> 00:18:55.305
'cause of his Darwinism maybe, or partly

361
00:18:55.305 --> 00:18:56.985
because of his war experience.

362
00:18:57.645 --> 00:19:02.185
Um, he tended to, to be skeptical about claims

363
00:19:02.365 --> 00:19:06.025
to individual dignity and individuality and all of that.

364
00:19:06.085 --> 00:19:10.505
He, he saw life as about all about large forces

365
00:19:10.855 --> 00:19:12.905
that are often hard to control,

366
00:19:13.125 --> 00:19:15.585
and there's an awful lot of contingency,

367
00:19:15.685 --> 00:19:17.905
and it's all about struggle and so forth.

368
00:19:18.525 --> 00:19:19.625
And that,

369
00:19:19.725 --> 00:19:22.065
but it's also about struggle relating

370
00:19:22.065 --> 00:19:26.865
to ideas about which ideas will, will be, embraced for

371
00:19:26.885 --> 00:19:28.505
how long a time and so forth.

372
00:19:29.285 --> 00:19:32.105
And, and he thought that was very important.

373
00:19:32.265 --> 00:19:36.105
I mean, he, he valued stability a great deal, more

374
00:19:36.125 --> 00:19:39.025
so than some proponents of free speech.

375
00:19:39.725 --> 00:19:42.385
And that he thought that the most stable society

376
00:19:43.125 --> 00:19:46.065
is the society that can adjust particularly

377
00:19:46.085 --> 00:19:47.385
to changing conditions.

378
00:19:48.085 --> 00:19:51.745
Uh, in that way, you know, his dar his Darwinism surfaces,

379
00:19:51.745 --> 00:19:54.115
again, it's all about adaptation.

380
00:19:54.825 --> 00:19:58.235
What successful civilization is mostly about

381
00:19:59.055 --> 00:20:01.115
is adapting to changing conditions.

382
00:20:01.815 --> 00:20:06.035
Um, and, he thinks that if government has the power

383
00:20:06.215 --> 00:20:09.595
to regulate on the basis of predicting long-term

384
00:20:09.695 --> 00:20:13.715
or middle term harms, it will make people too afraid

385
00:20:14.055 --> 00:20:15.555
to think independently.

386
00:20:16.375 --> 00:20:17.875
Uh, and that loss of

387
00:20:17.875 --> 00:20:20.355
that independent thinking at the collective level

388
00:20:20.945 --> 00:20:23.115
will make it a less adaptive society.

389
00:20:23.775 --> 00:20:25.235
Uh, and so, and,

390
00:20:25.255 --> 00:20:27.395
and that's not a rationale for free speech

391
00:20:27.395 --> 00:20:29.195
that you hear from a lot of theorists.

392
00:20:29.315 --> 00:20:31.875
I mean, the, the standard rationales are

393
00:20:31.875 --> 00:20:35.875
that free speech contributes to democratic participation

394
00:20:36.495 --> 00:20:40.155
and, or for the long-term, search for truth

395
00:20:40.335 --> 00:20:42.315
or to individual autonomy.

396
00:20:43.175 --> 00:20:46.755
But I think for Holmes, it was more about, you know, he,

397
00:20:46.985 --> 00:20:50.445
his notion of truth was, modest.

398
00:20:50.665 --> 00:20:52.405
It was, it was kind of deflationary.

399
00:20:52.465 --> 00:20:54.965
It wasn't that there are eternal ities,

400
00:20:54.965 --> 00:20:57.965
and you'll get closer to them if you have open discussion

401
00:20:57.965 --> 00:20:59.485
and you'll make progress

402
00:20:59.705 --> 00:21:02.885
and get closer to the real ultimate truth.

403
00:21:03.045 --> 00:21:06.245
I mean, John Stewart Mill may have thought that, but

404
00:21:06.305 --> 00:21:09.205
and Holmes did, he even knew Mill, he visited him in London

405
00:21:09.305 --> 00:21:11.365
and so forth, but, but Holmes was much

406
00:21:11.365 --> 00:21:12.485
more skeptical about that.

407
00:21:12.585 --> 00:21:15.245
He just thought life was about struggle and,

408
00:21:15.425 --> 00:21:17.525
and that there was ongoing struggle,

409
00:21:17.865 --> 00:21:19.925
but there's better struggle and worse struggle,

410
00:21:20.505 --> 00:21:23.045
and that free speech contributes to better struggle

411
00:21:23.315 --> 00:21:25.445
because it makes people understand

412
00:21:25.445 --> 00:21:26.845
that other people think differently.

413
00:21:27.705 --> 00:21:31.405
And that that does, that's not a reason to be so,

414
00:21:31.985 --> 00:21:36.085
either fate fateful or, to withdraw

415
00:21:36.425 --> 00:21:40.125
or to, you know, be completely, you know,

416
00:21:40.345 --> 00:21:42.485
cruel to others.

417
00:21:42.605 --> 00:21:44.525
I mean, it's just, it's, it's, it's, it is, you know,

418
00:21:44.625 --> 00:21:47.325
the more you realize that time has upset many fighting

419
00:21:47.425 --> 00:21:49.845
faiths and that,

420
00:21:50.035 --> 00:21:52.885
everybody has their own hand can't help as he called them.

421
00:21:52.885 --> 00:21:55.325
They're just personal, you know, commitments.

422
00:21:55.865 --> 00:21:59.525
Um, and so that, that that's, that's,

423
00:21:59.525 --> 00:22:00.605
and that's a very good reason

424
00:22:00.945 --> 00:22:04.685
to think government party regulate long-term harms is a

425
00:22:05.045 --> 00:22:06.645
inconsistent with the first amendment,

426
00:22:06.645 --> 00:22:10.125
whereas the party regulates short-term immediate harms is

427
00:22:10.125 --> 00:22:11.845
not the work that I seek

428
00:22:11.845 --> 00:22:13.965
that could follow from this article would be mostly

429
00:22:13.965 --> 00:22:15.045
interpretative work.

430
00:22:15.665 --> 00:22:19.085
And I think that there's a lot more to be done in trying to

431
00:22:19.855 --> 00:22:23.685
understand what I just sketched about Holmes as, how

432
00:22:24.025 --> 00:22:26.885
how could he think, if he has a kind

433
00:22:26.885 --> 00:22:31.205
of deflationary view about truth, why should we think that

434
00:22:32.045 --> 00:22:35.525
survival and adaptation is best achieved through

435
00:22:36.745 --> 00:22:40.365
not allowing government to regulate for long term harms?

436
00:22:40.625 --> 00:22:44.725
Uh, that's still allowing an awful lot of, hurt

437
00:22:44.825 --> 00:22:48.285
to be generated by speech that threatens

438
00:22:48.285 --> 00:22:49.965
to harm in the long run.

439
00:22:50.705 --> 00:22:53.405
Uh, a lot of people would say there are certain very bad

440
00:22:53.415 --> 00:22:58.125
ideas, racism, for example, that,

441
00:22:58.425 --> 00:23:02.365
you don't want them to, you know, take hold, take root.

442
00:23:03.065 --> 00:23:07.445
Uh, it is gonna be harmful in the long run if they do,

443
00:23:08.255 --> 00:23:10.445
every society to hold together needs

444
00:23:10.445 --> 00:23:12.045
to have its founding principles

445
00:23:12.185 --> 00:23:15.125
and its its own kind of societal can't help.

446
00:23:15.565 --> 00:23:17.885
I think the, the future work is to, you know,

447
00:23:17.885 --> 00:23:22.285
sympathetically interpret homes the way I've suggested that,

448
00:23:22.345 --> 00:23:24.725
you know, it's all about, how

449
00:23:24.725 --> 00:23:28.245
to make free speech valuable as a, a, a vehicle

450
00:23:28.345 --> 00:23:29.565
of adaptation,

451
00:23:30.265 --> 00:23:31.965
and then address these questions of how

452
00:23:31.965 --> 00:23:35.885
that plays out in terms of, some of these other kind of,

453
00:23:36.065 --> 00:23:38.165
you know, or different kinds of long-term harms.

454
00:23:38.185 --> 00:23:40.325
So, so that's where I think that somebody could,

455
00:23:40.705 --> 00:23:42.205
if they were persuaded by this article,

456
00:23:42.235 --> 00:23:43.325
take it a few steps further.

Holmes: Life, Legacy, and Legal Philosophy

00:00:00 - I was one of three people who organized a centennial celebration of the famous Holmes opinion. And so we had a full day of, papers being delivered on, various aspects, the historical background and the philosophical assumptions, and the applications to modern problems and so forth. I was on a panel with three others, that talked about, Holmes's notion of harm and, in particular, why only count,

00:00:39 - And so that was the, but that was the setting for the inquiry. Holmes is probably the most famous Supreme Court justice who ever sat on the course. He'd certainly be one of the two or three. he was born in 1841. His father was a very famous poet who also was the, dean of the Harvard Medical School. Holmes, graduated from Harvard in 1860

00:01:10 - He was wounded three times, left for, on the battlefield at anti teem. The person who was doing the triage decided he was not worth trying to save. It was hopeless, but there was an orderly who said, no. I think he might, he might make it. So they dragged him to a farmhouse. And miraculously he did, recover. but many people think that his view of life was greatly affected by

Holmes: A Soldier's Journey to Philosophical Leadership

00:01:40 - his regiment was right at the point of Pickett's charge at Gettysburg, where he was an officer. He was a captain. Two thirds of the officer core of his regiment was killed that day at, Gettysburg. so his, after he, came back from the war, he had philosophical tastes, and some of his friends included, Charles Sanders purse. And William James, often thought to be the founders

00:02:13 - And Holmes was part of a discussion group that included those two and several others. they, they met for about three or four years talking over these big questions of philosophy and, you know, essentially giving a kickstart to the, of philosophy of, pragmatism. he taught for a little bit at Harvard Law School, but was appointed, to the, Supreme Court of Massachusetts where he served for 20 years. It was a very distinguished common law judge, you know,

00:02:46 - and property disputes and things of that sort. and then after 20 years, he ended up being the Chief Justice of Massachusetts. After about 20 years of that, he was appointed to the, United States Supreme Court by Theodore Roosevelt. and, for most of his time on the Supreme Court, he was famous for being, having a very narrow view of constitutional rights,

Constitutional Challenges and War Criticism

00:03:17 - challenges by businesses against, being required to pay minimum wages or limiting maximum hours or other forms of economic regulation that were popular in those years, say between 1,919 20. And his basic philosophy was that we should be very cautious about finding laws to be unconstitutionally believed in majority rule. and then, during the disputes over World War I,

00:03:50 - of people who claimed that the draft was unconstitutional and that the war was being fought for illicit motives, to protect Wall Street prophets. And, you know, many pacifists thought the US didn't have vital interests in the war in Europe and so forth. and there was a lot of, prosecution of, speakers for their criticisms of the war and their, criticisms of the draft.

00:04:20 - to the Supreme Court while Holmes was on it. He wrote the opinions upholding, criminal sentences for people who had basically called the graft unconstitutional and criticized the motives of the people who were promoting the war, and didn't surprise people 'cause he had such a, a narrow view of, constitutional rights. but eight months later, after he saw all sorts of persecution of what seemed like

Holmes and the Marketplace of Ideas

00:04:52 - but not very powerful, war critics, there was a sort of second wave of prosecutions. and for one of them, in the, Abrams case, he surprised everybody by disagreeing. The majority upheld the conviction. One of them was a 20 year conviction. Most of the others were 15 year convictions for what seems like kind of boilerplate standard war criticism.

00:05:23 - And he, descended in the Abrams case, and wrote his, you know, what's almost surely the most famous opinion that anybody on the Supreme Court ever wrote about the value of free speech? and it's where he insisted that, only, dangers of imminent harm can be a justification for regulating speech. And the kind of harm, if any, that was gonna follow from these critics was more remote.

00:05:56 - His reasons why he thought only imminent harms should count. and he's most famous in that opinion for introducing the metaphor of the marketplace of ideas. And his point being, the, the best sense of truth is the power of the thought to get itself accepted in the competition of the market. And so that a real function is served by dissenting speech, even when it might be wrong or unpersuasive.

Free Speech as Dynamic Understanding

00:06:27 - clarify their thoughts or to perhaps, modify them a little bit. And, you know, he basically saw free speech as a kind of ongoing process of dynamic understanding at the collective level. and that metaphor caught on. And, he became a kind of hero to free speech advocates. A lot of it had to do with his eloquence. He just had a way of saying things in memorable ways that,

00:06:57 - I'll try to both report my thinking and report what is probably the most widely held views on these matters. But, but the, you know, one argument for, for, you know, and putting the question starkly, everybody has to concede that some harms take time to develop that. you know, some speech has immediate effects, but some speech plants the seed, or, you know, starts this process of, changes of opinion

00:07:31 - So, one argument for saying, well only only look at the immediate effects, don't look at the long-term effects. And one, the, probably the most famous argument is the, the best way to contain bad ideas is to refute them. when you regulate them, you cause a lot of resentment, and you don't actually, get to the actual substance of, why people would say this

Holmes on Truth and Force in Ideas

00:08:00 - and so a lot of people interpret Holmes as market metaphor as being about the, you know, preference for refutation rather than coercive, regulation. I don't think that that's, it may be a good reason for some people to think you should never take into account long-term harms, but I don't think it works for Holmes. My, my articles interpretative rather than normative. I'm not trying to argue what's the best way

00:08:31 - to try to understand Holmes. But Holmes, was, you know, a realist. He was sort of proud about his description of the world as being all about force. And, you know, everybody is pushing their view to serve their own interests. And the, the, what what turns out to prevail is not what's necessarily the most persuasive or the wisest, but that generates the most force behind it.

00:09:04 - much people hold on to ideas that have been very successfully, refuted, that people are stubborn or people have attachments to their ideas that are not just entirely based on their truthfulness or their persuasiveness. So that Holmes is almost the last person that you'd wanna assume would believe that, the best solution is, you know, a conflicting debate

Holmes on Regulating Speech: Immediate vs. Long-Term Harm

00:09:35 - something that sounds more like a Holmes and reason would be a second, argument for, not allowing regulation of immediate harms. And that's the, the, the, I mean, for only allowing regulation of immediate harms and not long term, and I'll call 'em remote, is that, the energy that's necessary for a bad idea to cause harm tends to dissipate over time.

00:10:07 - and activated and so forth, but it's very hard to sustain that kind of energy so that if your real concern is not what's gonna happen right now or tomorrow, or in a very short time span, but what's gonna happen in a long, in the long run because of somebody saying this in this way, usually a very good bet is that the energy won't be sustained, and therefore, even something

00:10:39 - probably is not gonna be that dangerous, and therefore you should let the person, speak the harm is gonna be overrated, so to speak. A third reason is that if you're reading Holmes carefully, it's only for a limited kind of speech that he thought you couldn't take into a car point part remote harm. So for a lot of regulation, you can, in his view, regulation, for example, of what public officials can say

Holmes on Harm: Regulation, Prediction, and Public Good

00:11:14 - to make their points and so forth, that he was only talking about criminal prosecution, for, harms that do not involve harms to private rights. If you can identify individuals who are endangered in the middle run or long run, he allowed that regulation. It's only when what you're invoking is the public good, the common good.

00:11:42 - not a, a long term, harm. a fourth reason is that it's harder to predict or to measure, remote Harms. it's, it's more speculative than trying to predict or measure what appear to be immediate harms. There are just, too many variables, under, you know, even giving weight to the variables as to speculative and so forth.

00:12:13 - and trying to understand him in that. You have to realize maybe because his, his father was a doctor and also was a important medical scholar, it really actually made a, a break a breakthrough in his medical research that Holmes always said that the scientific method, was a very important, idea in his mind. Darwin's origin of species came out when he was, undergraduate at Harvard,

Campus Disputes and Evolutionary Beliefs

00:12:43 - and, you know, all all, and a lot of it was students going to their professors and saying, well, here, you know, we understand evolution. Now you're, what you're teaching us is not evolution, and and it's not consistent with this theory of evolution. And a lot of the teachers were, you know, rigid in their beliefs or had theocratic grounds for their beliefs and so forth. So there was a kind of real campus dispute undergraduates versus professors on this, you know, scientific method

00:13:14 - And Holmes was right in the middle of that. And he was, you know, a great believer in Darwin and, and, and the theory of evolution, and that was a lifelong, interest of his was the theory of evolution. and, and so, the, and then part of the, you know, this commitment to the scientific method was that, you know, if you, if you're o only predicting remote harms and you can't do that in a rigorous way, you just don't have evidence, it's too speculative scientific method.

00:13:45 - And that's one possible explanation for why he was reluctant to take into account predicted remote harms from, speech. And I think that does, fits with other values of his. fifth reason would be that speakers don't have enough notice of what they can say. I mean, if, if, if they know they're gonna be subject to punishment for the immediate consequences, they probably have a pretty good way themselves of predicting what the immediate consequences might be.

Navigating the Complexities of Long-term Harm in Free Speech

00:14:16 - consequences, but at least they have notice of that what they're doing is thought by the society to be dangerous and so forth. But if you're talking about long-term harms, they can be defined in different ways. There are all sorts of other contingencies that come into a play, into play. And, it means that speakers are just guessing. And of course, you, you want speakers trying to assert their rights to have an ability to assess how dangerous is it gonna be on this occasion to say this?

00:14:51 - On the basis of the court's predictions of long-term harm rather than, immediate harm. The sixth reason somewhat related is if you think you should only be punishable when you bear moral responsibility, because if your agency in creating the harm, you might think that long-term harms follow from too many contingencies that intervene, for the harms to be realized,

00:15:20 - to go this way rather than that way and so forth. There's more responsibility when you're saying things that you have every reason to believe will cause harm right away. So there may be, you know, arguments based on, the, the right. A speaker has not to be held responsible for situations where they don't have the dominant agency. a seventh reason might be that, if you allow long-term dangers to count,

Freedom of Speech and Seditious Libel in Democratic Governance

00:15:53 - of regulating speech is to prosecute people for what's called seditious libel. That is libeling the government itself, or government policies. And the, assumption of, democracy or republican form of government, or government based on public opinion, is that you have to have freedom to

00:16:25 - the current policies and so forth. It's just, you know, the very form of government we're committed are to, with popular sovereignty. We, the people of the United States create this constitution depends on having a mobile public opinion and having policies that can be changed in response to public opinion. And that requires, saying

00:16:53 - and their policies more so than other forms of government like monarchy, for example, depends so much on public opinion and having a kind of mobile, understanding in the, in the, populace. So that would be one reason to, to say that long-term remote harms can't count. They're in too much tension with seditious libel. And then finally, and I think maybe the most important is that, it's inconsistent with freedom of thought.

Regulating Speech: The Balance Between Immediate Harm and Long-Term Freedom

00:17:29 - limited harm. That's the key here. That speech that is likely to cause harm instantly is likely to be less value in the scheme of things to the development of ideas. You know, it may be important to Getting people to act in the moment, but in terms of making, what makes speech in some views,

00:17:59 - the way it generates long-term, benefits rather than, you know, immediate kind of, you know, consequences. Once you allow government to regulate on the basis of remote harms, it is much more dangerous when the government is doing that to free thought that, you know, people are gonna be more cautious in what they think and when they express their thoughts when they know they're possibly liable for the middle term

00:18:31 - See, and that's what I think a lot of people don't understand about Holmes, because he was not an idealist and he didn't believe in individual personal autonomy. He didn't think the, the freedom to say what you think or even to develop your thought is part of personhood. It's just so important to the individual, partly 'cause of his Darwinism maybe, or partly because of his war experience. he tended to, to be skeptical about claims

Struggle, Adaptation, and Free Thought

00:19:06 - He, he saw life as about all about large forces that are often hard to control, and there's an awful lot of contingency, and it's all about struggle and so forth. And that, but it's also about struggle relating to ideas about which ideas will, will be, embraced for how long a time and so forth. And, and he thought that was very important. I mean, he, he valued stability a great deal, more

00:19:39 - And that he thought that the most stable society is the society that can adjust particularly to changing conditions. in that way, you know, his dar his Darwinism surfaces, again, it's all about adaptation. What successful civilization is mostly about is adapting to changing conditions. and, he thinks that if government has the power

00:20:09 - or middle term harms, it will make people too afraid to think independently. and that loss of that independent thinking at the collective level will make it a less adaptive society. and so, and, and that's not a rationale for free speech that you hear from a lot of theorists. I mean, the, the standard rationales are that free speech contributes to democratic participation

Holmes on Truth, Struggle, and Free Speech

00:20:40 - or to individual autonomy. But I think for Holmes, it was more about, you know, he, his notion of truth was, modest. It was, it was kind of deflationary. It wasn't that there are eternal ities, and you'll get closer to them if you have open discussion and you'll make progress and get closer to the real ultimate truth. I mean, John Stewart Mill may have thought that, but and Holmes did, he even knew Mill, he visited him in London

00:21:11 - more skeptical about that. He just thought life was about struggle and, and that there was ongoing struggle, but there's better struggle and worse struggle, and that free speech contributes to better struggle because it makes people understand that other people think differently. And that that does, that's not a reason to be so, either fate fateful or, to withdraw or to, you know, be completely, you know,

00:21:42 - I mean, it's just, it's, it's, it's, it is, you know, the more you realize that time has upset many fighting faiths and that, everybody has their own hand can't help as he called them. They're just personal, you know, commitments. and so that, that that's, that's, and that's a very good reason to think government party regulate long-term harms is a inconsistent with the first amendment, whereas the party regulates short-term immediate harms is not the work that I seek

Holmes, Truth, and the Regulation of Long-Term Harms

00:22:13 - interpretative work. And I think that there's a lot more to be done in trying to understand what I just sketched about Holmes as, how how could he think, if he has a kind of deflationary view about truth, why should we think that survival and adaptation is best achieved through not allowing government to regulate for long term harms? that's still allowing an awful lot of, hurt

00:22:48 - to harm in the long run. a lot of people would say there are certain very bad ideas, racism, for example, that, you don't want them to, you know, take hold, take root. it is gonna be harmful in the long run if they do, every society to hold together needs to have its founding principles and its its own kind of societal can't help.

00:23:42 - sympathetically interpret homes the way I've suggested that, you know, it's all about, how to make free speech valuable as a, a, a vehicle of adaptation, and then address these questions of how that plays out in terms of, some of these other kind of, you know, or different kinds of long-term harms. So, so that's where I think that somebody could, if they were persuaded by this article, take it a few steps further.

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