Saturday, June 11, 2011
Professor Steven J. Heyman's article, The Dark Side Of The Force: The Legacy Of Justice Holmes For First Amendment Jurisprudence, has just been published, 19 William & Mary Bill of Rights Journal 661-723 (2011), with a draft available on ssrn.
It is a must-read, especially for those intending to quote Justice Oliver Wendell Holmes (pictured left) in their scholarship this summer or in their future teaching. Heyman's article is an excellent exploration of Justice Holmes writings - - - both in Holmes' opinions and elsewhere - - - on First Amendment and democratic values.
Heyman argues that First Amendment jurisprudence has "Jekyll-and-Hyde quality." There is a deep divide between the Constitutional protection of "freedom of expression in order to promote basic liberal values such as individual self-fulfillment, democratic deliberation, and the search for truth," and on the other hand, protection for "racist hate speech, violent pornography, invasion of privacy, and other kinds of expression that undermine those fundamental values." Although Heyman does not extend the Jekyll and Hyde metaphor explicitly, what is clear is that Heyman conceptualizes Justice Holmes not as the more respectable Dr. Jekyll, but as the evil Mr. Hyde of Robert Louis Stevenson's famous novel.
Heyman analyzes Holmes' famous "marketplace of ideas" conceptualization of the First Amendment, noting Holmes' "deeply held Darwinian views about life and law." Id. at 690. Holmes' competitive notion of democracy, best expressed in Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting), has always seemed a bit at odds with another of Holmes' well known passages, his dissent in Lochner v. New York 198 US 45 (1905). Heyman views Holmes' as consistent:
Holmes understood social and political life in terms of group conflict, such as the struggle between workers and employers. He saw the constitutional order as a neutral framework for channeling such conflict and resolving it by lawful means. This is the view that animates the other judicial opinion for which he is best known—his dissent in Lochner v. New York. There he writes that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Instead, the Constitution establishes an arena within which groups with “fundamentally differing views” can struggle for dominance. “Every opinion tends to become a law,” and except in the most extreme cases, the courts should not interpret the Constitution to prevent “the natural outcome of a dominant opinion” or to interfere with “the right of a majority to embody their opinions in law.”
19 Wm.&Mary Bill Rts. J. at 684 (footnotes omitted). Heyman is most convincing regarding his critique of Holmes' worldview and its ultimate meanings for democracy. He elucidates the "broader problem with Holmes’s view" thusly:
Contrary to the impression that may be conveyed by the expression “free trade in ideas,” Holmes does not believe that free speech does or should involve an interaction between autonomous subjects. Instead, he sees speech as an activity in which the speaker treats
others as objects. This may involve an effort to dominate them, but it may simply involve
an effort to use them to achieve the speakers’ own ends.
Id. at 705. Yet Heyman's article is not limited to a historical critique of Holmes, but an analysis of how this Holmesian view continues to affect recent free speech cases, including Citizens United, in which the Holmesian world view of the majority is juxtaposed to the liberal humanist views of Justice Stevens' dissenting opinion.
Put this on your summer reading list!
[image: Oliver Wendell Holmes, circa 1924, via]