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Holmes was one of the twentieth century’s most articulate legal minds; among other contributions, he developed and refined the concept of “clear and present danger” as a protection of free speech. Named after his father, who was a famous physician and writer, Holmes was graduated from Harvard College in 1861; he served for three years in the Civil War, during which he was wounded three times and was promoted to the rank of captain. He returned to Harvard to study law; after graduation in 1866, he practiced law in Boston and taught law and jurisprudence at Harvard.

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Intrigued with the philosophical and historical aspects of the law, Holmes questioned many common ideas of the age, especially the assumption that established legal doctrines allowed judges to deduce logical answers to new problems. In 1881 he popularized his pragmatic and historical conceptions of the law in the influential classic The Common Law. “The life of the law,” he wrote, “has not been logic; it has been experience.” In 1882 Holmes was appointed to the Massachusetts Supreme Court, becoming chief justice in 1899. Impressed by Holmes’s progressive interpretations of labor law, President Theodore Roosevelt named him to the U.S. Supreme Court in 1902.

On the U.S. Supreme Court, Holmes disagreed so often with the conservative majority that he was sometimes called the “great dissenter.” He particularly criticized the way that the Court struck down economic regulations, such as minimum wage laws, as violations of “due process of law,” advocating instead the doctrine of “judicial restraint.” Holmes insisted that it was the role of elected representatives to determine public policy, and that the courts should not strike down legislation except when it clearly violated the Constitution.

In cases dealing with free expression, however, Holmes gradually became persuaded that the courts should prevent legislatures from suppressing the right of minorities to express dissent. As the Supreme Court examined the limits of free speech in the years following World War I, Holmes argued that the “bad tendency” standard did not sufficiently protect the right to criticize the government and advocate change. While he approved of convictions for circulating antidraft leaflets in Schenck v. United States (1919), Holmes based his opinion on the “clear and present danger test,” which allowed for restriction of expression only in cases of an imminent threat to the public welfare, such as the shouting of fire in a crowded theater. In his famous dissent in Abrams v. United States (1919), Holmes altered his test so that government could punish speech only when it “produces or is intended to produce a clear and imminent danger” of those evils which the government could “constitutionally prevent.” Calling for a “free trade in ideas,” he wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Following his death, Supreme Court majorities repeatedly endorsed liberal interpretations of his clear and present danger test, culminating in Brandenburg v. Ohio (1969).

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