Majority Opinions Authored by Justice Oliver Holmes

Eugene Debs, a candidate for president, expressed anti-draft and anti-war sentiments at a rally, illustrated by his statement to the crowd, “[Y]ou need to know that you are fit for something better than slavery and cannon fodder.” The Supreme Court, finding “the defendant caused and incited and attempted to cause and incite insubordination, disloyalty, mutiny and refusal of duty in the military and naval forces of the United States and with intent so to do delivered, to an assembly of people, a public speech,” held that Debs’ speech violated the Espionage Act.

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236 U.S. 273 35 S.Ct. 383 59 L.Ed. 573 JAY FOX, Plff. in Err.,v.STATE OF WASHINGTON. No. 134. Submitted January 19, 1915. Decided February 23, 1915. Mr. Gilbert E. Roe for plaintiff in error. [Argument of Counsel from page 274 intentionally omitted] Mr. W. V. Tanner, Attorney General of Washington, and Mr. Fred G. Remann,… Read more

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The defendant circulated a newspaper that criticized the United States’ involvement in World War I. He was charged under the Espionage Act of 1917 which granted the government wide latitude in punishing expression that could disrupt the United States’ war efforts. Affirming the defendant’s conviction, the Supreme Court stated, “a person may be convicted of a conspiracy to obstruct recruiting by words of persuasion.”

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The publisher of certain articles and a cartoon, which were intended to embarrass the Supreme Court of Colorado and reflected upon the motives and conduct of the Supreme Court of Colorado in cases still pending, was found guilty of contempt and fined by the Supreme Court of Colorado. The publisher argued that his Fourteenth Amendment rights were violated and that his conviction should be reversed. — In this his first free-speech opinion while sitting on the High Court, Holmes declined to hold that the First Amendment applied to the states. He declared: "We leave undecided the question whether there is to be found in the 14th Amendment a prohibition similar to that in the 1st. But even if we were to assume that freedom of speech and freedom of the press were protected from abridgments on the part not only of the United States but also of the states, still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practised by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. Com. v. Blanding, [cites]; Respublica v. Oswald, [cites]. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all." — The senior Justice Harlan rejected Holmes' view. Declared Harlan: "I go further and hold that the privileges of free speech and of a free press, belonging to every citizen of the United States, constitute essential parts of every man's liberty, and are protected against violation by that clause of the 14th Amendment forbidding a state to deprive any person of his liberty without due process of law. It is, I think, impossible to conceive of liberty, as secured by the Constitution against hostile action, whether by the nation or by the states, which does not embrace the right to enjoy free speech and the right to have a free press."

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Socialist Charles Schenck was charged with conspiracy to violate the Espionage Act of 1917 for distributing leaflets which called the draft involuntary servitude and called for a boycott of the draft. The act made it a crime to “attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States[.]”

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