The Great Dissent

How Oliver Wendell Holmes Changed His Mind and Changed the History of Free Speech in America

By: Thomas Healy

Narrated by: Danny Campbell

No right seems more fundamental to American public life than freedom of speech. Yet well into the 20th century, that freedom was still an unfulfilled promise, with Americans regularly imprisoned merely for speaking out against government policies. Indeed, free speech as we know it comes less from the First Amendment than from a most unexpected source: Supreme Court justice Oliver Wendell Holmes. A lifelong skeptic, he disdained all individual rights, including the right to express one's political views. But in 1919, it was Holmes who wrote a dissenting opinion that would become the canonical affirmation of free speech in the United States. Why did Holmes change his mind? That question has puzzled historians for almost a century. Now, with the aid of newly discovered letters and confidential memos, law professor Thomas Healy reconstructs in vivid detail Holmes's journey from free-speech opponent to First Amendment hero. It is the story of a remarkable behind-the-scenes campaign by a group of progressives to bring a legal icon around to their way of thinking - and a deeply touching human narrative of an old man saved from loneliness and despair by a few unlikely young friends.

Beautifully written and exhaustively researched, The Great Dissent is intellectual history at its best, revealing how free debate can alter the life of a man and the legal landscape of an entire nation.

©2013 Thomas Healy (P)2013 Tantor

Critic reviews

"Engrossing... An exceptional account of the development of the Constitution's most basic right, and an illuminating story of remarkable friendships, scholarly communication, and the justice who actually changed his mind." ( Kirkus Starred Review)

If you like the law....

This book weaves together the biography of O.W.Holmes Jr. with the First Amendment history in the Supreme Court. It is surprising to learn how weak the law was to protect Freedom of Speech before the 1940s. We learn about the interrelationships between Holmes, Learned Hand, Cardozo, and Brandeis along with some of the academics who influenced our civil liberties. I also learned where the phrase "Clear and Present Danger" came from and that Holmes did not originate the oft-cited limitation of free speech by yelling Fire in a crowded theater. The legal philosophy is a little dense and I had to re-play some parts to figure it out.

Taking every step with the era's vibrant thinkers

This author has done a wonderful job on many levels. He masterfully weaves together ideas, people, surrounding culture, institutions and events in service of this fine history.

We start with Holmes himself, a figure who (in ways unsuspected by me) bridged quite different eras in thought and national history. Holmes emerges as a bridge between quite disparate thinkers, many of whom might never have occupied the stage of history without him. For example, though a Boston brahmin of perfect pedigree, he risked that standing to stick up for important Jewish legal thinkers (and their ideas) who were being publicly painted with a broad brush of hysterical jingoism by some of Holmes' Harvard elite colleagues. Holmes even at 77 had a remarkable nimbleness, if sometimes slow, with perking his ears to a good new idea, and (despite sometimes giving short shrift in legal opinions, at least for awhile), staying with the ideas, keeping his vigorous discussions open with others, through gnawing unease and rethinking. Ultimately, he emerged at the far side, with formulations many people may take for granted today as "just the way things are."

As a result, I do not fear in posting this review that some bureaucrat might think my opinions seditious and have me arrested, as happened in this (WW1) era aplenty. Holmes (even within his own head, beginning as a Civil War vet wounded in action, his family swords posted prominently in his home, and as shown in his sequence of legal opinions) spans a part of this emergence from a more warlord/absolutist/paternalist state ("right or wrong," as goes the phrase quoted to him here) toward a more complete logical spread of the Enlightenment (via the US Constitution) to allow mere opinion to circulate, even during wartime. This process was very uneven, I see here, and was something like, three steps forward, two steps back, at points like this (the WW1 era and its aftermath). And, we still see echoes of these themes today.

Fundamental to a free society

With the election of Donald Trump this is perhaps the most important book to read.

One Of Those Great Historical Accounts...

of stories most people misunderstand and only know the half of. Give it a good read, and the next time someone says your "triggering speech" is like "someone shouting fire in a crowded theater," you will have a cogent and historically correct answer. Really enjoyable book.

I LOVED this book!

If you could sum up The Great Dissent in three words, what would they be?

A great book

Which scene was your favorite?

Listening to the dissent and realizing that it was going to become the majority opinion for the future of free speech.

If you were to make a film of this book, what would the tag line be?

The Great Dissent.

Any additional comments?

Oliver Wendell Holmes was a fascinating and amazingly smart man. The story of his life and times should be required reading for law students. It does not just discuss the law but shows how a variety of factors can change ones mind. It does not just tell a story, it shows an open minded philosophy that we all should have.

Very Good Book

I have a new appreciation for Justice Holmes. The book moves along and keeps your interest. I would recommend this book.

Even a nonlawyer will enjoy

The presentation is so engaging and historical that even a nonlawyer will enjoy.
Most all of us have heard of Felix Frankfurter and Learned Hand as historical jurists , but it is
quite enjoyable to hear their discussions of famous cases they decided

How a 78 year old man can learn & change his mind

I learned so much from this book. I must admit I had not read or studied anything about the history of the first amendment before. This absorbing book is about the law and also about change, how one man's thinking evolved nearly 100 years ago. For 125 years the first amendment was essentially dead until Holmes wrote his dissent in 1919. Thomas Healy shows us how Holmes was educated/persuaded to change his mind about the meaning and reach of our most fundamental safeguard. His friends, Justice Brandeis, Judge Learned Hand, Harold Laski, Felix Frankfurter, Zechariah Chafee (all teachers at Harvard) and others had discussion, letter exchanges and loaned or gave him books to read. Holmes was a voracious reader and during his summer breaks he devoured books that challenged his thinking. Holmes also had a habit we should all learn, he listened to people who didn't agree with him and set about to learn more about the topic from all view points.

The rule, at the time, borrowed from British practice, was that you could speak and publish freely without fear of prior restraint, but once you had spoken, the State had the freedom to prosecute you. Holmes had written the majority opinion in Debs V U.S. upholding the conviction. Eugene Debs was the Socialist candidate for President. He gave a campaign speech and was arrested after for violation of the Sedition act and sentence to 10 years in prison. I found this interesting because via Audible I had read "1920: The year of six Presidents" by David Pietrusza and "Clarence Darrow" by John A. Farrell. Darrow was Debs attorney. Both these books provided a great deal of information about Debs and the above mentioned case. Holmes had been a defender of the power of government to punish controversial speech. He was a Boston Brahmin and his friends were owners of big business so he dismissed the fight of and for unions and the problems of the workers.
I found it fascinating how Holmes's friend educated him at age 78 to change his mind. . When the Court reconvened in the fall they heard the case Abrams V U.S. Holmes decided to write the dissent opinion in the case and changed the Frist Amendment forever. He provided guidelines to help determine when the speech crossed the line, he stated "clear and present danger of public harm" to be the key. The Abrams case is covered in-depth in the book so I will not spoil it by going into it. Danny Campbell did a good job with the narration. This is a book I am going to read again.

This is a fascinating story well told.

What did you love best about The Great Dissent?

In this age of resistance its a story we should all know. The understanding of we all share of the First Amendment was not the understanding 100 years ago.

What was one of the most memorable moments of The Great Dissent?

What (many of us) don't realize is that 100 years ago the First Amendment was not interpreted the way it is today. It was interpreted as not requiring an individual to get approval from the Government before publishing an opinion or making a speech critical of the government. Afterwords however the Government was free to arrest you for treason if it happened to disagree with you. This in fact was Oliver Wendel Holmes point of view until his "Great Dissent". The question this book addresses beautifully is why he changed his mind.

Which character – as performed by Danny Campbell – was your favorite?

Holmes of course is the central compelling character but the sketches of Brandeis, Laski and many others are fascinating and go to the heart of why he changed his mind.

Any additional comments?

The author weaves together beautifully many of Holmes letters with friends to document the evolution of his opinion.

Compelling!

Would you recommend this audiobook to a friend? If so, why?

Yes but I would warn them of the author's generous assumption that the reader/listener already has a basic knowledge of legal terms and processes. If you're a lawyer or US law aficionado you'll probably breeze right through the book. But if you're a layperson like mysel, you may find it difficult to muddle through. However, the author unfolds the story with such momentum and recounts with riveting detail the events that modified the interpretation of our First Amendment rights (from its inception through today) that my desire to thoroughly comprehend this continuing metamorphosis far outweighed the laborious process of educating myself in "US Law 101".

What did you like best about this story?

The historical process of defining the legal interpretation of First Amendment rights as we know it today is fascinating! "The Great Dissent" has sharpened my critical thinking skills and provoked self-examination of my own limited and prejudiced understanding of a constitutional right that until now I unwittingly generalized and took for granted.

What about Danny Campbell’s performance did you like?

Much if the novel consists of text taken directly from witness accounts and historical archives. The manner in which people talked and wrote varies greatly from how we communicate today. With poetic justice, Danny Campbell recounts these events flawlessly.

Was there a moment in the book that particularly moved you?

Yes. But to reveal that moment would create a spoiler. It is however revealed in the Epilogue.

Any additional comments?

My advice to a layperson of U.S. Law who is considering reading this book is to familiarize yourself with the following beforehand:1. Blackstonian view of free speech2. Espionage Act of 19173. Sedition Act of 1798 and 19184. Bolshevist5. Legal intent vs. lay intent as defined and understood in the 18th, 19th and 20th centuries. Once I educated myself on the above and with a dictionary of legal terms/definitions at my side, I read this book with great enthusiasm!