From WSJopinion: Americans may take free speech for granted today, but they couldn’t do so a century ago, write ishapiro and Michael T. Collins
By Ilya Shapiro and Michael T. Collins Nov. 7, 2019 5:55 pm ET Americans may take free speech for granted, but they couldn’t do so a century ago. Courts convicted newspapermen, pamphleteers and politicians for nothing more—and sometimes less—than trying to sway the public against U.S. involvement in World War I. On Nov. 10, 1919, the Supreme Court affirmed the conviction of antiwar protesters under a law that made it a crime to “hinder” the war effort. But a dissent in Abrams v. U.S.
In October the court in Abrams upheld another antiwar protest conviction—but this time not unanimously. Like Charles Schenck, Jacob Abrams was a socialist who had distributed antiwar pamphlets. His group criticized U.S. military support for the anti-Communist White movement in the Russian Civil War. As socialists of the time often did, the pamphleteers urged a general strike in New York, on grounds that workers were making weapons to use against their Bolshevik comrades.
The court affirmed the convictions over the surprising dissent of Schenck’s author, Holmes, joined by Justice Louis Brandeis. It’s unclear why Holmes put aside his majoritarian impulses to support a constitutional restriction on legislative action. Some scholars have posited that Holmes acted not out of a commitment to the Constitution but because of the disparate impact of speech restrictions on progressive icons. Even so, the dissent is steeped in libertarian ideas.
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