John Stuart Mill, Oliver Wendell Holmes, and the Defense of Free Speech

Irene M. Ten Cate, Columbia Law School, has published Speech, Truth, and Freedom: An Examination of John Stuart Mill's and Justice Oliver Wendell Holmes's Free Speech Defenses in volume 22 of the Yale Journal of Law and the Humanities (2010). Here is the abstract.

This Article is the first in-depth comparison of two classic defenses of free speech that have profoundly influenced First Amendment law: John Stuart Mill's On Liberty and Justice Holmes's dissenting opinion in Abrams v. United States. Both defenses argue that dissenting speech plays a critical role in a collective truth-seeking endeavor, and they are often grouped together as advocating for a marketplace of ideas, a metaphor that has become a fixture in American constitutional law.

However, this Article finds that, on closer examination, the two theories are grounded in fundamentally different views of the quest for truth and the role of speech in this undertaking. Mill envisions a process in which clashes between contrary opinions lead to progress in uncovering universal, unchangeable truths. Individuals who express unpopular views are indispensable, as their challenges to prevailing opinions keep the search for truth, and the meaning of already discovered truths, alive. The mentions of truth in the Abrams dissent, consistent with elaborations on the subject in Holmes's scholarly writings and correspondence, are best read as referring to choices made by majorities or dominant forces in response to internal and external challenges to the status quo. Holmes's commitment to free speech appears to be based primarily on its role in safeguarding a process by which decision-making factions can be formed This Article argues that a key to understanding the differences between the two defenses lies in the ideas about freedom that are at the heart of Mill and Holmes's world views. Mill believes that individuals are free in the sense that they have the ability to choose their beliefs, even if they frequently opt for the easier alternative of uncritically following the mainstream. At the same time, he believes that a society can create conditions that are conducive to individual flourishing. Mill's free speech defense is based not only on the argument that individuals are more likely to pick true beliefs if presented with several alternatives, but also on the notion that a society that prizes dissent promotes the development of character traits in its citizens that will in turn allow that society to prosper. Holmes, on the other hand, views individuals as constrained by firmly rooted preferences shaped by accidental circumstances, but regards society as constantly evolving and adjusting and, to a large extent, free to determine its future course. His defense is staked on a constitutional commitment to safeguarding the conditions for collective self-determination in an uncertain and perpetually changing world.

Download the article from SSRN at the link.