Modern First Amendment jurisprudence is deeply paradoxical. On one hand, freedom of speech is said to promote fundamental values such as individual self-fulfillment, democratic deliberation, and the search for truth. At the same time, however, many leading decisions protect speech that appears to undermine these values by attacking the dignity and personality of others or their status as full and equal members of the community. In this Article, I explore where this Jekyll-and-Hyde quality of First Amendment jurisprudence comes from. I argue that the American free speech tradition consists of two very different strands: a liberal humanist view that emphasizes the positive values promoted by free speech, and a darker vision that is rooted in the jurisprudence of Justice Oliver Wendell Holmes. Holmes understands free speech as part of a struggle for power between different social groups - a struggle that ultimately can be resolved only by force. After sketching the liberal humanist view, I trace the development of Holmes’s position, which is grounded in his Darwinian understanding of human life and in his deeper view that all phenomena in the universe are governed by force. Next, I evaluate the Holmesian approach and discuss its implications for a wide range of contemporary issues, from hate speech and pornography to the Citizens United decision on electoral advertising by corporations. I conclude that Holmes’s view does not provide an adequate rationale for free speech, and that it undermines the liberal humanist principles that should be regarded as central to the First Amendment.
Steven J. Heyman,
The Dark Side of the Force: The Legacy of Justice Holmes for First Amendment Jurisprudence,
Wm. & Mary Bill Rts. J.
Available at: http://scholarship.kentlaw.iit.edu/fac_schol/311