Document Type
Article
Publication Date
Winter 1988
ISSN
0749-2227
Publisher
University of Virginia School of Law
Language
en-US
Abstract
Writing The Name of the Rose, observed Umberto Eco, made him aware of the "echoes of intertextuality." He discovered what "Homer, Rabelais and Cervantes have always known: . . .books always speak of other books, and every story tells a story that has already been told."' The same applies to political and legal theories: they weave the past into the present. Thus, in articulating justifications for freedom of speech, one may look to modern works such as Milton or John Stuart Mill, or one may reach farther back to Aristotle, Plato or Pericles. The choice of intellectual sources as inspiration may provide insights about the author's inclination toward one political theory or another. We each tend to rely on those sources which resonate with our own world view. But what inclines an individual toward one political theory over another? And what, except for chance and accident, makes us intellectually attracted to one set of sources rather than another? Can personal temperament partially account for a leaning toward one form of political theory over another?
William James observed that temperament influences the philosophy of an individual.2 Can temperament also influence a judge's choice of theoretical justifications, as well as the choice of intellectual sources from which to fashion those jurisprudential justifications?'
In the second and third decades of this century, Oliver Wendell Holmes and Louis Dembitz Brandeis laid the foundations for free speech theories in the United States.4 Although their work is usually lumped together as the "Holmes-Brandeis dissents," their opinions are not of one cloth. Their sources of inspiration, their conceptions of the polity, and as could be anticipated, their temperaments were different.
This article explores the three threads which separate Holmes from Brandeis in their justifications for freedom of speech: intellectual influence, political theory and temperament. Holmes' justification, based on the free trade of ideas, will be traced to modern English works on free speech, particularly John Stuart Mill's On Liberty.5 Brandeis' justification, interpreted by some as the justification from self-rule,6 and by others as the justification from self-fulfillment," but which I will link to civic virtue, will be traced to fifth century Athens, particularly to Pericles' Funeral Oration.8 The free trade of ideas — Holmes' choice of justification — reflected Holmes' libertarian political persuasion. Civic virtue — Brandeis' choice of justification — reflected Brandeis' republican leanings. Temperamentally, Holmes was basically a skeptic and a pessimist, Brandeis an optimist. Insofar as I attempt to show a relationship between temperament and world view, I limit my case to Holmes and Brandeis. I consider the claim that there is a causal connection between pessimism and libertarianism, or between optimism and civic virtue, as interesting yet wild. I will, however, proceed to argue in the second part of this article that the choice of justification — free marketplace of ideas or civic virtue — matters in adjudicating contemporary cases where the scope of the first amendment is at stake.
Recommended Citation
Pnina Lahav,
Holmes and Brandeis: Libertarian and Republican Justifications for Free Speech
,
in
4
Journal of Law and Politics
451
(1988).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/2219
