Holmes, Brandeis and the American Jurisprudence of Free Speech

Document Type

Article

Publication Date

Summer 1987

ISSN

15655261

Publisher

Tel Aviv University School of History

Language

heb

Abstract

Where does the border run between tolerance and free speech, as opposed to the recognition of dangerous and anti-democratic ideas? This question, which faces the Israeli courts today, also faced the federal judges of the United States at the beginning of the century. Two of these judges — Holmes and Brandeis — chose to permit free speech even at the price of a challenge to democracy. Yet although Holmes argued that only a free contest between ideas, without any interference, would lead to the discovery of the truth, Brandeis thought that among the roles of the judge was to express norms and values, and thereby to influence society.

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