Oliver Wendell Holmes: ‘The Great Dissenter’

The jurist who established the ‘Clear and Present Danger’ test

Oliver Wendell Holmes came up with the clear and present danger test in an opinion written on the Schenck v. United States case in 1919. Oliver Wendell Holmes at his desk circa 1924. Library of Congress. Public Domain

Oliver Wendell Holmes Jr. served on the U.S. Supreme Court when several laws were passed that restricted freedom of speech. This was a time when people spoke against the government and its choice to go to war.

For years, the Supreme Court did not defend people’s right to free speech. Then Holmes came up with a test that would shape how the First Amendment would protect people from facing criminal charges when they violated laws regarding what could be said and printed.

Holmes himself voted several times that certain things people said were not protected under the First Amendment. His views changed with the “clear and present danger” test in his opinion written on the Schenck v. United States case in 1919. After that, he began using the test to voice his opinions about who should be protected by the First Amendment. He eventually earned the nickname “The Great Dissenter” for several famous dissenting opinions he wrote against the majority of Supreme Court votes.

Oliver Wendell Holmes, Jr. about 1872, age 31. Public Domain

Even though the Supreme Court didn’t implement the clear and present danger test for several years after Holmes established it, later, in the 1940s the test was used to decide a dozen cases. The test also served as the basis for other tests that would be implemented later.

Holmes never supported socialism or communism, but some of his dissenting opinions supported people who had these beliefs. Holmes thought that the First Amendment was vital for the country:

“If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought, not free thought for those who agree with us but freedom for the thought that we hate,” Holmes stated in his dissenting opinion for United States v. Schwimmer in 1929.

His test eventually led the way for people who spoke against the government to be protected under the First Amendment. Many to this day still wonder what exactly free speech is, and Holmes was one of the first to bring this question to light.

Civil War Captain, Lawyer, and Judge

Holmes Jr. was born on March 8, 1841, in Boston to the famous doctor and writer Oliver Wendell Holmes Sr. who was well revered as a physician and also the co-founder of the Atlantic Monthly. Holmes went to a private school before attending Harvard College and graduating in 1861.

Holmes Jr. served in the 20th Massachusetts Regiment of Volunteers. Oliver Wendell Holmes Jr. as a Union soldier, September 1861. Authenticated News/Getty Images

Just before his graduation, the Civil War broke out, and after his commencement he joined the war efforts on the Union side in the 20th Massachusetts Regiment of Volunteers. Holmes served in the Union Army for three years. He was seriously wounded in a handful of battles including Ball’s Bluff in 1861, Antietam in 1862, and Chancellorsville in 1863.

Holmes left the army in 1865 and said, “I trust I did my duty as a soldier respectably, but I was not born for it and did nothing remarkable in that way,” according to Encyclopedia Britannica.

That fall, Holmes entered Harvard Law School and graduated in 1866. He passed the bar and practiced law. Holmes spent the next ten years writing and developing lectures on the structure and the history of law. These lectures would be published in 1881 and coined “The Common Law.”

In 1882, Holmes was given the position of Weld Professor of Law at Harvard Law School. And then in December that same year, he was appointed as a judge in the Supreme Judicial Court of Massachusetts.

The Supreme Court

In 1902, President Theodore Roosevelt gave Holmes the nod to join the U.S. Supreme Court, a position that he held until he was 90 years old. To this day, he is the oldest person to serve on the country’s highest court.

During his first several years on the bench, Holmes was not an advocate for the First Amendment. In fact, in 1907, he decided in the Patterson v. Colorado case that there were no First Amendment infringements when the state charged a newspaper editor with contempt; the editor had printed cartoons and articles that presented the Colorado Supreme Court judges in a derogatory manner. Holmes believed that the First Amendment only limited the federal government, not local actions.

And then, in 1915, after overseeing the Fox v. Washington majority opinion case called “The Nude and the Prudes,” Holmes rejected the defendant’s defense that his First Amendment rights had been violated when he was charged with a misdemeanor for printing an article that praised nudity.

Clear and Present Danger

After serving on the Supreme Court for over a decade, Holmes would eventually have a change of heart and become a First Amendment advocate, taking on the role of civil rights activist. In 1919, the Supreme Court saw the case of Schenk v. United States. Socialist Charles Schenk was charged with violating the Espionage Act of 1917. He had launched a massive effort to discourage men from fighting in World War I by telling them to not respond to their draft notices.

The Supreme Court upheld Schenk’s conviction when they agreed that the First Amendment should not protect someone from interfering with the government’s ability to raise troops during wartime. However, in the court’s opinion written by Holmes, he introduced the clear and present danger test. The test would go on to become a tool that the court would use to help it determine what types of speech were protected by the First Amendment and which were not.

Members of the U.S. Supreme Court in 1904. Justice Oliver Wendell Holmes (1841–1935) is standing on the far left. MPI/Getty Images

Holmes used an example to explain the only time freedom of speech did not apply when he wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

Then that same year, the First Amendment came up again during Abrams v. United States. Holmes dissented from the majority when they upheld the convictions under the Espionage Act of 1917. Five Russian immigrants were said to be anarchists and socialists. In his dissenting opinion, Holmes said that the principle of free speech should be the same whether the country was at war or peace.

Holmes reiterated his belief, according to the First Amendment Encyclopedia, that the only time the government could put restraints on speech was when the speech created a “present danger of immediate evil or an intent to bring it about.”

For the rest of his tenure, Holmes continued to advocate the use of the clear and present danger test. In 1925, the Supreme Court upheld the conviction of the defendant who was distributing socialist material in Gitlow v. New York. Holmes dissented, saying that the words at issue posed no clear or present danger of inciting violent action.

Other First Amendment Tests

Since Holmes came up with the clear and present danger test, as the Cornell Law School explains, it has been used in several cases involving criminal prosecution for people opposing war, laws penalizing the advocacy of the overthrow of the government, attacks on courts or judges, and picketing. However, the Cornell Law School also gives examples of cases where the rule has not been implied, including those involving antitrust laws, libel cases, laws regulating the conduct of labor union affairs, and demonstrations in inappropriate places like in front of a courthouse.

In the 1950s, the test led to the “preferred position doctrine” that  gave precedence to the First Amendment whenever it came into conflict with other rights. The court then began to use the “strict scrutiny test” that “closely examines cases in which fundamental rights and those of protected classes according to race, religion, and ethnicity are at issue.”

Overall, Holmes’s beliefs that the First Amendment was vital to a successful democratic society would shape the way the Supreme Court decided cases well beyond his death in 1935.