William & Mary Bill of Rights Journal


Andres Yoder


One hundred years ago, Justice Oliver Wendell Holmes changed his mind about the right to free speech and wound up splitting the history of free speech law into two. In his dissent in Abrams v. United States, he called for the end of the old order—in which courts often ignored or rejected free speech claims—and set the stage for the current order—in which the right to free speech is of central constitutional importance. However, a century on, scholars have been unable to identify a specific reason for Holmes’s Abrams transformation, and have instead pointed to more diffuse influences. By drawing on heretofore overlooked material, and by investigating the evolution of Holmes’s political thought, this Article identifies a specific reason for Holmes’s reversal that is both compelling and new.

Along the way, this Article makes the surprising revelation that Holmes never believed his influential marketplace-of-ideas concept—that is, his argument in Abrams that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Instead, he only cared about what the intellectual elite thought. This Article also makes the surprising revelation that big-name journalist and wit H. L. Mencken pushed Holmes to adopt libertarian free speech rhetoric in the final stretch of his career. As a result, Mencken emerges as a new contributor to the rise of modern free speech law.