> Justin:
> > Holmes came around to the view that id the dictatorship of the
> > proletariat was popular, there was no constitrutional objection to it.
>
> Charles: In theory. In practice, when he voted in the first First
> Amendment cases, he put socialists in jail, the quivering liberal.
>
> As you know, in the earlier cases, Abrams, Schenk, and Debs, he did vote to
> penalize speech. By a few years later, in Gitlow and Whitney, he had come
> around to a civil libertarian position.
>
> CB: Whitney still went to jail.
I received above post sans attribution for third comment...
Holmes position distinguished between "ordinary" & "extraordinary"
circumstances. Schenk advocacy of draft resistance during WW1 was
"clear and present danger" that could lead to "evils that Congress
has right to prevent." He held same position in both Debs &
Frohwerk cases (decided by Supreme Court about one week after Schenk)
where plaintiff anti-draft comments had been used to convict then
under 1917 Esponage Act.
Of course, Schenk position was that of SP (with over 100,000 members
and more than 1,000 elected officials) which government subjected
to systematic repression, Debs was most famous US socialist, and
Frohwerk was publisher of German language socialist newspaper.
For Holmes, most important factors were always (as he wrote in Schenk)
"proximity and degree." So contrary to above, Holmes dissented in
Abrams case, calling A "unknown man" and referring to his (in concert
with several other Russian immigrants) leaflet as "silly." Leaflet,
issued near end of WW1 and targeted to Russian emigre workers),
criticized Wilson for using US troops in support opponents of Bolshevik
Revolution and suggested possible need for general strike.
Holmes dissent in Gitlow is consistent with "proximity and degree"
position. H held that G pamphlet "Left-Wing Manifesto" might well
be suppressed if it called for immediate uprising against government.
Plus, Gitlow's arrest for violating 1902 New York law on criminal
anarchy occurred post WW1, more likely to be "ordinary" circumstances
in Holmes mind (guess repressive state apparatus never dismantled
following war wasn't "extraordinary").
In Whitney (Anita Whitney was member of Communist Labor Party) case,
Holmes agreed with Brandeis concurring opinion about necessity of
"free speech." Yet, both he and & B voted with majority - on
technical grounds - to sustain her conviction under California
criminal conspiracy law.
Holmes statement in Schenk that First Amendment does not protect
someone "falsely yelling fire in a crowded theater and causing a
panic" is excellent example of why all analogies are suspect *and*
some more so than others. Michael Hoover
