Put out of your mind the picture of the tolerant aristocrat, the great liberal, the eloquent defender of our liberties, the Yankee from Olympus. All that was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak.
Grant Gilmore on Oliver Wendell Holmes jr.
Justice Holmes proved to be a shadowed figure, marked by the bigotry and sexism of his age who in personal letters seemed to espouse a kind of fascist ideology. He was a violent, combative, womanizing aristocrat whose contributions to the development of law was difficult to define.
Sheldon M. Novick author of Honorable Justice: The Life of Oliver Wendell Holmes
I don't lightly say that the free speech rulings starting with the Sullivan decision under the sometimes rather meat-headed Warren court and its related rulings such as Buckley vs. Valeo during the more often meat-headed Berger court, or the rulings under the most often depraved Rehnquist and the current Roberts courts are bringing us to the point where democracy will be pitched into fascism on the empowerment of lies. That's not a matter to be taken lightly nor do I take the possible consequences of punishing the media for lying lightly.
All of the possibilities all the possible consequences of this issue carry dangers. The pretense of free speech absolutism is that by magic the puny little "more speech" of some puffed-up academic or journalistic scribbler in some largely unread journal is going to magically counter the lies of FOX or Sinclaire or the other corporate entities that are bringing us to the point where lies rule and so we have fascism instead of government by an informed electorate, well, that was not only ridiculous to start with, it has been disproved in the hardest of ways, by real life.
I began with that great hero of "free speech" faith Holmes, because the adulation of him which I absorbed from the liberalish-lefty culture of my adulthood was, itself based on lies, much of it, I suspect stemming from the play and, more so, movie they made about him in the 1930s, the Magnificent Yankee. As I found when doing the first real research I ever did on him, looking at original sources and the testimony of his long-time associates and friends, especially his longtime secretary and distinguished judge, Francis Biddle, it wouldn't be anything but honest to say that this lion of free speech had a lot more in common with the fascists of Europe than he did anyone who really believes in democracy. I'm convinced that his aristocratic disdain for the large majority of his fellow human beings, reinforced by his 19th century scientism and, especially, his Darwinism pretty well smashes any idea that Oliver Wendell Holmes jr. had anything but disdain for the idea of democracy, an idea which I have come to believe will be exposed ever more in the "free speech absolutist" cohort as we witness the lies enabled by their ideology made law do what they have done since 1968, elect an increasingly fascistic series of Republicans, relieved only by moderates who have to contend with the "free speech" ideology and its base of true believers, appointing more of those to the court and cementing into place the Age of Lies which rule us now.
If you doubt that, you should consult Holmes "The Path of The Law," his articulation of his scientistic view of the law, his pretense that law and governance can be made scientific.he said
For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought.
Or course, that's the pretense of the atheistic-materialistic intellectual program, that such "clearness of our thought" is attainable, that the absolute predictability and reliability which is what those who don't think hard about the actual character of science imagine it produces - if you want a good example of how silly that idealized vision of science is, read the arguments between the proponents of various views of it. I found reading the criticism of Karl Popper and the response of his defenders an eye-opener in that regard. For anyone, especially a practicing lawyer and judge to have the view of law that Holmes did only goes to show you how we've allowed them to get away with murder - in the case of judges, often literally so.
But the idea that the law should give up any ideas of moral significance would certainly run into many problems, the concept of truth, of guilt and innocence, of rights, any laws prohibiting even murder are based in moral concepts. There was a practical problem for Francis Biddle in his role as the chief judge at the Nuremberg Trials that impinges on that idea, what the Nazis did in their genocidal campaigns, in their conduct of war was all legal under duly adopted law in Germany and, after the Anschluss, Austria and in the lands invaded by them. Strictly speaking, under the theory of his mentor, what the Nazis did wasn't illegal and there was no legal justification for holding them accountable, certainly not while doing so on German soil. Holmes is often presented as a great philosopher of law but he was a really bad philosopher if, as most materialist-scientistic-atheists (and he was all three) he refused to ever follow his own preferred ideological framing to its logical conclusion for things he liked but which would have to have fallen under his claimed basis for it.
I have come to see Holmes as a mostly malignant figure, an out of place plaster statue in the hagiography of 20th century, especially post-war liberals, proving that even the college-credentialed among them, have failed to really read the primary material on him, relying on costume drama and bio-fictional accounts of him and cherry-picked citations and quotes. His "free speech" statements, after his opinion in Schenck v. United States, are mothers milk to so many of those, even as they ignore that his motives were hardly to promote equality and that he had a deep seated hatred of anything like economic justice. I think any subsequent judicial reasoning that flows from his concepts are probably liable to produce unintended consequences. I also see the influence of Holmes as flowing from the confusion between the liberalism I hold, the traditional American definition which is the basis of egalitarian democracy and the "enlightenment", what is most consistent with what is defined as neo-liberalism which is hostile to or at least in unavoidable conflict with egalitarian liberalism which is based, not on science, but in morality.
Well, we are living with the consequences of allowing the mass media to lie. Everything, from the Putin mafia's influence in our election, the self-advertised expertise of the Mercer company Cambridge Analytica, the spewings of FOX and Sinclair, the results of the mowing down of campaign finance laws - a response to the corruption of the post-Sullivan decision political world as expressed in Nixon and, even more so, Reagan - all spring from that view of free speech absolutism, in which, we have seen, lies will govern, billionaire oligarchs intent on preventing democracy and government of, by and, especially FOR THE PEOPLE, all of it flows from that position of pudding-headed liberalism, much of it based on the words of a Justice who hated the traditional American liberalism of equality of all People and economic justice.
My fellow liberals, we got suckered, definitively. We got suckered from lines popularized in the media - the primary pushers and primary economic beneficiaries of that line. I pointed out that all alternatives in regard to the regulation of speech carried dangers - like so many human issues, that is true of. We have found out that when you allow lies to flow freely, we get the results we have and all that magical-imaginary-"more speech" doesn't hinder the rise of fascism in a regime of lies. The Holmesian desideratum of the rich and powerful crushing the have-nots flourishes and the "free speech - more speech" crowd will eat the crumbs from their masters' tables. Nat Hentoff, Mr. Free Speech of The Nation, the Progressive and Village Voice ended his days as a whore at the Cato Institute. The foremost voices in favor of "free speech" c. 2018 are neo-Nazis and fascists.
Note: Grant Gilmore reportedly struggled with writing a biography of Holmes for a number of years and gave up the project. I suspect it is because, as he really considered what Holmes said, the real results of his holdings, that he, as I, found him to be entirely not as sold but a really terrible figure any honest presentation of who will be at odds with the public relations snow job we've been sold for about a century.
I really do believe that a lot of the worst results of "free speech" and other claims of liberalism are as a result of clinging on to ill thought out ideas which produce anything but egalitarian democracy. I think those Canadians who say speech is a right but it is only one of many rights have a more realistic view of how to handle the issue. They have the advantage of having a modern Constitution instead of the 18th century antique, theirs is, no doubt, informed by the results of the experiment which our Constitution was, with all its appalling shortcomings which it prevents us from fixing. I would love it if we just adopted the Canadian one to replace the dangerous rattle trap we've got
No matter what we do, everything from allowing any lie, any hate-speech free reign in an unregulated media to unacceptable levels of restriction on speech has dangers. We can't avoid those dangers no matter what we choose, but we have found out that in the present legal climate, fascism will crush the rights of many others and billionaires will use the mass media to lie people into that. That's what billionaire oligarchs do, here and abroad and they have little to no care about the American People anymore than Putin's mafia does the Russian people.
Regarding the Holmes quote: morality, of course, is a constraint on power. It is telling that Holmes wants to rip that spine out of English and American jurisprudence, the better to do what he wants for himself and his friends. The parallels to the Trump administration are hardly accidental.
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