The ABFFE Book of the Month for August is Ron Collins' The Fundamental Holmes: A Free Speech Chronicle and Reader - Selections from the Opinions, Books, Articles, Speeches, Letter and Other Writings by and about Oliver Wendell Holmes, Jr. (Cambridge University Press)(978-0807044414).

Interview with Ron Collins

ABFFE: Your book demonstrates the role that Holmes played in the growth of free speech after WWI. Was he always a civil libertarian?

Ron Collins: Not at all, at least not in the way we use those words today. Unlike Brandeis, Holmes was not a political progressive. Fact is, he had contempt for many of the people whose claims of right he sustained. But he did have his Darwinian creed, and that meant that he was willing to let virtually all into the marketplace to fight it out..                                                         

ABFFE: Why did he change his mind?

RC: Prior to his 1919 dissent in Abrams v. United States, Holmes had a pretty dismal record when it came to sustaining claims of free expression. That changed with Abrams; in the 14 Supreme Court free speech cases after that, he sustained free speech claims 12 times. There are a number of explanations why his view "changed" (some deny it did). Among them are the influences of Zechariah Chafee and Louis Brandeis, two prominent First Amendment figures. Learned Hand may have helped to move Holmes along, too.

ABFFE: What made him such a powerful advocate?

RC: Clearly, his rhetorical abilities played a major role. He knew how to turn a phrase in ways that would immediately resonate with lawyers and non-lawyers alike. He was a master of metaphor.

ABFFE: Did Holmes ever express an opinion on artistic freedom?

RC: If you mean in a free speech case, he did very little in this area. But he did join the Court's unanimous opinion in Mutual Film Corporation v. Industrial Commission of Ohio (1915), which denied First Amendment protection to popular movie films. On a related front, he also joined the Court's 1907 opinion in Halter v. Nebraska, a flag-desecration case. Here, too, I think that with time his views would develop and would become far more speech protective.

ABFFE: Would he think we have gone too far in protecting sexually explicit speech?

RC: I don't think so, because he was such a contextualist, and his jurisprudence in this area became libertarian-like. That said, in 1915, in a case named Fox v. Washington, he let stand a ban on the publication of The Nudes and Prudes, a rather harmless tract defending nude sunbathing. In later years, Holmes took a more open-minded view, so my guess is that he would protect such speech though perhaps with certain clearly defined limitations. But who knows for sure?

ABFFE: What is Holmes' most enduring legacy?

RC: Some may challenge this, but I think his free speech jurisprudence as manifested in his 1919 opinions and thereafter. More than others, Holmes reignited the American mind when it came to defending free speech. Make of him what you will, but this cannot be denied: He is the pater of the modern First Amendment.

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