Almost exactly a century ago, Oliver Wendell Holmes, Jr. joined the Supreme Court of the United States. His story is worth recalling as our nation faces the challenge of protecting Constitutional liberties while pursuing barbaric enemies.

    Holmes brought to the Court an extraordinary background as scholar and patriot. He was wounded three times as a Union volunteer in the Civil War. “Much of what I know,” he told friends, “I learned in the regiment.” He taught at Harvard and served on the Supreme Judicial Court of Massachusetts.

    It fell to Justice Holmes to develop the Constitutional rules of free expression in times of war. Several people had been convicted of writing and speaking to obstruct the American effort in World War I. They appealed.

    Writing for a unanimous Court, Holmes acknowledged the conflict between rights of expression and the immediate security interests of an embattled government.

    “When a nation is at war,” he wrote, “many things that might be said in times of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight.”

    That was the central issue for the Court. Fathers and sons, husbands and brothers were dying in combat. It remains the issue for many Americans today. Some believe that any critical speech must be prevented in perilous times like these.

    If the words create a clear and present danger to the nation, Holmes said, they could be punished. By that standard, all nine Justices upheld the convictions of the indicted speakers and publishers.

    But Oliver Wendell Holmes, Jr. was a scholar, so he listened respectfully to the views of others. Federal judge Learned Hand, in conversations and letters, urged Holmes to require something worse than criticism of government policy before putting people in prison.

    Only direct incitement to illegal acts should be punished, Hand argued. He rejected the common belief that free speech must automatically give way in wartime to higher interests. Free speech, he said, is a higher interest in a democracy.

    Hand and other free speech advocates won Holmes over. When the next war protestor case reached the Supreme Court, Holmes and Justice Louis D. Brandeis broke with their brethren. They dissented from the Court’s decision upholding convictions of Russian anarchists for distributing anti-war leaflets.

    Holmes deftly exposed the folly of punishing unpopular views. “Persecution for the expression of opinions seems to me perfectly logical,” he wrote. “If you have no doubt of your premises or your power and want a certain result with all your heart, you naturally express your wishes in law and sweep away all opposition.”

    But views may change, he knew. They must be subject to challenge. Holmes declared, “When men have realized that time has upset many fighting faiths, they may come to believe… 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.”

    Holmes’s view eventually became a foundation of today’s First Amendment law. Yet every time we face some new danger, we must remind ourselves of the profound national commitment to free speech.

    As we build essential unity to vanquish the craven murderers of September 11, we may be tempted to suppress criticism or even news reporting that challenges official positions. In a great nation that seeks to balance might with right, this would be a grave mistake.

    Most of us will support our leaders as they battle what the New York City journalist Pete Hamill calls “the twisted minds and hardened hearts” behind the horror. But some Americans will oppose whatever course is chosen, or a particular part of the strategy, and they should be heard.

    This is among the many freedoms that terrorists try to kill. Surely Holmes – soldier, patriot, Justice – would have us deny them that victory.

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A primary source for this comment is the excellent biography, “Justice Oliver Wendell Holmes: Law and the Inner Self” by G. Edward White (Oxford University Press, 1993.)