Sunday, August 20, 2017

The Irresponsible Unreality Of Holmes' Abrams Dissent, 1. The Background In Real LIfe As Opposed To Pretend

I, like probably everyone reading this who is not a lawyer, never read the entire decision and dissent in the 1919 Supreme Court case, Abrams v United States.   It is the case which said that the motley combination of anarchists and other vaguely and inaccurately identified lefties who wrote and produced two pamphlets against the First World War or, more accurately, it would seem, any covert military or other opposition to the revolution in Russia had a right to issue inflammatory pamphlets advocating action against that.  The producers of the pamphlets were arrested and prosecuted for violating several laws passed to prevent propaganda for the purpose of attacking the government and to inhibit things like wartime production to hinder the course of the war.  Since the important thing about this is the dissent to the majority opinion that let those prosecutions stand by Oliver Wendell Holmes jr.  a dissent joined in by Louis Brandeis, all I'll point out is that Holmes had voted in several earlier cases to uphold those laws as Constitutional.

The dissent Holmes wrote in Abrams is widely considered to have, ultimately, won because it was so heavily relied on to allow all kinds of speech, much of it, clearly dangerous to people in ways that have become entirely familiar.  The permission of such "speech" as has been allowed through the use of and extension of Holmes words is exactly the kind of hate speech which is such a danger to the lives and rights and freedoms of Black People, Latinos, Women, LGBT people, Muslims, Jews, Native Americans etc.   By that list it is obvious that the majority of Americans are the target of such speech and of attacks promoted in such speech.   I will note that, by and large, the members of those groups most in danger are not such people who are wealthy, people of ordinary or modest means, people who are poor or destitute are more likely to be the targets of such violence and discrimination. That is easiest to see in whose rights are effectively denied them by that kind of hate speech made law and upheld by the Supreme Court, especially in the area of voting rights.   If such hate speech impacted on rich, straight, white men, those laws would never have been made and such hate speech would never have been permitted to stand.   

I am certain that courts comprised of the victims of such speech, if they really cared about the people who would be the targets of such speech would never have issued such words as Holmes did in that case or the ones extending those words.  Anyone who was or had their rights and lives, the rights and lives of their loved ones targeted though hate speech would never agree with that thinking.  Unless they'd been acculturated and trained in the conventions of thought that issue from such places as elite law schools at Ivy and may-as-well-be-Ivy universities.  The role that such acculturation and the privileges and benefits even members of severely discriminated against minorities expect to gain from their diplomas from such places plays in their upholding of speech and actions that damage their fellow minority members is something that really needs thinking about.  Needless to say, any lawyer whose thinking is seriously at odds with what Holmes said, if such deviation did not advantage the wealthy and powerful, wouldn't expect to be appointed to a judgeship or expect to rise in the judicial profession or in a major law school faculty.   

As I started, I'd never read the full dissent, never having read more than a closely clipped part of it that is often given as the core of Holmes thinking.   Reading it I was surprised to see how little the dissent has to do with the realities of the situations it is misapplied to in the subsequent history of its use.  Today it is used to allow hate speech and lies which promote Nazism, fascism, white supremacy and the party which made a conscious decision to benefit from overtly taking on white supremacists as a result of the passage of the Civil Rights and Voting Rights acts, the Republican Party.   The thinking of Holmes in such "free speech" cases has also been used to benefit the pornography industry, mass media (which, being corporate entities which exist to profit the owners, share a great deal in common with the white supremacist enabling Republican Party and pornographers) and even the vestiges of the old print media who have an ever less important role in political and cultural life.  Such are he people who have so often been the beneficiaries of the branch of government least answerable to The People, the courts, especially the Supreme Court.   

Reading the decision I have to say Holmes thinking is quite flawed, even for the time it was issued in 1919 and subsequent history has shown that his thinking was even less attached to reality than its repute would have you believe.  Yet the beneficiaries and imagined beneficiaries of that line of thought pretend otherwise. 

This is going to take at least a couple of posts.  Before I get into the actual words of Holmes in this case I will repeat something I wrote a few years ago about the misplaced trust that liberals have put in the thinking of Holmes who was no liberal and whose basic personal and legal philosophy rejected the very basis of American liberalism.   It was, in fact, far more in line with the thinking of some of our more amoral libertarians and, as can be seen in his most infamous majority opinion, Buck v Bell issued seven years later, it shared some proto-fascistic characteristics.   So much so that his words were used by the Nazi defendants at the Nuremberg tribunals to defend their actions, something which must have stood out for the chief American judge there, Holmes' former secretary, friend and confidant, Francis Biddle.   As I said in those earlier pieces about what Biddle wrote about Holmes in 1960.

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His familiarity with Holmes gives Biddle's analysis of the effect that Holmes' thinking and reading a particular credibility that could stand alone as evidence of how he came to decide what he did.  In a series of lectures Biddle gave, which were published in 1960 he said.  

[In Holmes' thinking] All society rested on the death of men or on the prevention of the lives of a good many. So that when the Chief Justice assigned him the task of writing an opinion upholding the constitutionality of a Virginia law for sterilizing imbeciles he felt that he was getting near the first principle of real reform— although of course he didn't mean that the surgeon's knife was the ultimate symbol. 

... He was amused at some of the rhetorical changes in his opinion suggested by his associates, and purposely used "short and rather brutal words for an antithesis," that made them mad. In most cases the difficulty was rather with the writing than with the thinking. To put the case well and from time to time to hint at a vista was the job. . . . 

The vista of which Biddle spoke was provided by Holmes' reading of Charles Darwin.  Biddle continued:

This approach is characteristic of Holmes, and constantly reflected in his opinions— to keep the law fluid and the doors of the mind open. For pedestrian lawyers it was often unsatisfactory— they wanted everything defined and settled and turned into everlasting precedents. 

Darwin's influence was strong on Holmes, and his theory of the survival of those who were fit to survive must have been constantly and passionately discussed in Dr. Holmes's house when 
Wendell was a growing lad and young man. On the Origin of Species had appeared when he was eighteen, and The Descent of Man in 1871, when he was thirty. Darwin led to Herbert Spencer, 
whom Holmes thought dull, with the ideals of a lower middle-class British Philistine, but who, with Darwin, he believed had done more than any other English writer to affect our whole way of thinking about the universe. All his life Holmes held to the survival of the strong, and did not disguise his view that the Sherman Act was a humbug, based on economic ignorance and incompetence, and that the Interstate Commerce Commission was not a fit body to be entrusted with rate making. However, as he said to Pollock, he was so skeptical about our knowledge of the goodness or badness of laws that he had no practical criticism except what the crowd wants. Personally he would bet that the crowd if it knew more wouldn't want what it does. 

Compared to the "right" of private businesses to do things that could have enormously effects, good or bad, on countless people, including deaths,  Holmes saw the danger of individual people asserted to be "imbeciles"  having a child as more deserving of the most extreme state intervention, even into their bodies with surgery, on the mere prediction that any child they had was of an increased potential to be intellectually or physically deficient.  

Yet Holmes is seen as some kind of great progressive force in the law, primarily, I'd guess, due to his free speech dissents and his usefulness to Franklin Roosevelt at the very end of his life.  There also was the movie of the play "The Magnificent Yankee" which only adds weight to the case that historical fiction in the hands of the theater and Hollywood, is best considered to be fiction.  Liberals seem to be suckers for that kind of "history".

Since he lived until 1935, Holmes saw eugenics activity in the United States increase enormously after his decision, responsible for the forced and involuntary sterilization of scores of thousands of people.  He also lived to see the rise of fascists in Europe, the Nazis, he lived long enough and could have been quite aware of the Nazis eugenic laws, the first in Germany, in July of 1933, laws which were justified by the Nazis and their supporters by citing the eugenics laws in the United States, both at the beginning and, as mentioned before, after the fall of the Third Reich.  I don't know if he is recorded as ever having said anything about that,  other than his declaration that he felt he was getting at "the first principle of real reform" in his decision, I haven't yet found anything he said in its wake.  I would suspect there is something, I just haven't found it yet. [I still haven't found it.]

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Given his use by "civil libertarians" the "free speech - free press" industry and the subsequent PR campaign which turned a pretty nasty and vicious and cold blooded enthusiast for inequality, laissiez faire capitalism, eugenics and even was prepared to believe that the result of Darwinian struggle was beneficial for the survivors into a hero, it is no real surprise that his thinking would end up benefitting Nazis. Looking at the Abrams decision,  I noticed that the year it was issued is also the year that is generally considered as being the beginning of the Nazi party, though it wouldn't change its name till the next year.   It was two years into the Russian revolution which had already pretty much disposed of the democratic movement within the revolution and the ascendant Communists under Lenin had already started the campaign of murdering their opponents and were embarked on the terror that cemented their power in the lands under their control.   They were already exercising their influence and power in foreign countries, including in the United States,  1919 was the year that the Communists in Russia helped engineer the destruction of the old Socialist Party at the emergency convention that had been called in Chicago through such Hollywood mythologized celebrities as the idiot Jack Reed.   

More to the point of the danger of hate speech, there were 83 known lynchings in the United States in 1919, who knows how many other racially motivated murders where a rope wasn't used.  The KKK had reformed, inspired by the blockbuster movie of 1915,  Birth of a Nation which glamorized and mythologized the KKK and promoted some of the most vicious and still politically potent lies of racism which the incumbent president and Attorney General are using to attack voting rights on behalf of the Republican Party.   Lynching is a crime in which hate speech plays a crucial, motivating role, though rich, white, powerful men are almost never those who have to worry about it. 

Perhaps more to the point of why Holmes issued a dissent instead of writing the majority opinion, 1919 was also the year that anarchists inspired by the words of  Luigi Galleani had sent a series of package bombs to prominent people through the mail.  Bizarrely enough, considering his language in favor of the rights of anarchists to such "free speech" one of the people who were sent a bomb was Oliver "Wendell Holmes jr.  Or maybe that explains why he might have wanted to appease such anarchists?  I don't know.   I do know that one of the few actuall casualties was the maid of one of the intended targets and that Franklin and Eleanor Roosevelt were narrowly missed by one of the packages exploding near them.   

The context of the very year that Holmes issued his dissent proved that his thinking was not closely related to reality, it would certainly become less so as the speech of Nazis matured and bore some of the worst fruit ever sown.  That lawyers and judges and justices, pretending their use of Holmes in the even less relevant context of the intent of 18th century slave owners was adequate to post war reality is even more insanely irresponsible.   Today, with Nazis, white supremacists and actual fascists in the White House, put their by cabloid and hate talk radio hate talk and preying on the paranoia of people who have imbibed that hate talk for decades, creating a reality show Fuhrer who, even as his treason to the country, his pathological racist excuse making for Nazis known has about a third of the country supporting him, continuing with that line of idiocy is a guarantee of disaster.   And I would bet my last dollar on that, expecting to win the bet soon. 

I will call your attention to this part of what Francis Biddle said about the man he knew better than anyone alive today and more qualified to talk about the basis of Holmes' thinking.

he was so skeptical about our knowledge of the goodness or badness of laws that he had no practical criticism except what the crowd wants. Personally he would bet that the crowd if it knew more wouldn't want what it does. 

That was, actually, something he said in the most quoted paragraph of his dissent:  

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.

He said that in a year, 1919, in which Jim Crow was as powerful as it ever would be, in which women had not narrowly been given the vote (the fate of that amendment rested on one vote in one state legislature) it was a country in which racism, bigotry, sexism, class hatred and other forms of thought were on top and did rule and blight the lives of a majority of the people in the United States.  Holmes, himself, supported some of that thinking as his infamous Buck v Bell decision proved.  And what Holmes no doubt thought of as a Darwinian struggle for existence among ideas would soon give ascendence to Leninism and Stalinism and Nazism and fascism in the same way that Jim Crow ruled a large part of the United States, imposing an apartheid-fascism on Black Americans, the terror campaign of Lynching and other violence a very real reality for them.   

Anyone who has a reasonable expectation of being the focus of violent hate speech , of an advocacy of violence in their real life instead of Supreme Court Justice theoretical pondering who doesn't think an assertion that such violence should not be given a chance to prevail is insane.   Such people who do accept, without objection, the "free speech" industry lines on that are suffering something like the Stockholm Syndrome, in which their own imprisonment and endangerment is accepted through some pathological identification with their oppressors.  Many of them with no more thought than the rote learned conventional slogans of such interest groups, created and spouted on behalf of those who benefit from the hate speech.   Women who accept the slogans that benefit the epic misogyny of the porn industry are especially out of touch with reality.  LGBT people who accept such "free speech" as has tortured us are as much victims of those automatically learned lines.  

There is no rational reason, in 2017 for any honest person to pretend that Nazis have a right to spew violent hate speech or that Nazism is based in anything but genocidal hate speech.   As people piously recite a far more noble and realistic slogan of "Never again", they should consider that the thinking of Holmes and the "free speech" industry includes the very real assertion that those who want it to happen again have a right to try to make it happen again.  Free speech absolutism is, in as real a way as possible, incompatible with the declaration of Never Again.  For its present day victims, "again" is already here.  

1 comment:

  1. " the "free speech - free press" industry"


    Ah yes. It's of a piece with the equally phantasmagorical rightwing bugaboo, "the abortion industry."

    ReplyDelete