The Permission Society. Timothy Sandefur

to which a man may attach a value and have a right; and which leaves to every one else the like advantage.” This included a person’s ideas. Just as “a man’s land, or merchandize, or money is called his property,” so too “a man has a property in his opinions and the free communication of them” and “a property of peculiar value in his religious opinions.”²⁴

      Freedom of speech or religion were therefore kinds of property. Both prior restraint and punishment after expressing unpopular views violated freedom of speech because they contradicted this basic element of personal liberty. Freedom was violated not only when a person was barred from speaking but also when he was forced to speak against his will – to pledge allegiance to a doctrine he detested or to spread a message with which he disagreed. As Jefferson wrote in the Virginia Statute for Religious Freedom, it is “sinful and tyrannical” for the government “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves.”²⁵

      During the early twentieth century, however, political philosophers and judges came to reconsider the nature of free speech. Turning away from Madison’s individualistic views, such Progressive Era thinkers as John Dewey, Louis Brandeis, and Oliver Wendell Holmes saw the freedoms of speech or press not as property rights but as tools for ensuring that the public could reach wiser collective decisions. Thus, while some Progressives took important strides toward greater protections for free expression,²⁶ they also compromised it in a fundamental way, making it into an essentially public rather than private value. Speech, in their eyes, was a privilege the government gives citizens for society’s purposes, rather than an individual right the government must respect.

      A key actor in this transition was Holmes, author of the renowned dissenting opinion in the 1919 free speech case Abrams v. United States.²⁷ That case involved the same 1917 Espionage Act that later formed the basis of the Pentagon Papers case. A group of communists who opposed American involvement in World War I had printed up antiwar flyers and thrown them from a fourth-floor window in Manhattan to passersby on the sidewalk. They were arrested and charged with trying to hinder the war effort, which the act prohibited. When the case reached the Supreme Court, the justices upheld the convictions 7–2.

      Holmes had already written several opinions allowing the imprisonment of antiwar activists under the Sedition Act, including the Socialist Party’s presidential candidate, Eugene V. Debs. Yet he dissented in the Abrams case, and that dissent became a landmark of free speech law. In 2014, law professor Thomas Healy published The Great Dissent: How Oliver Wendell Holmes Changed His Mind and Changed the History of Free Speech in America, arguing that modern freedom of speech began with Holmes’s dissent – a view shared by most judges and law professors today. Andrew Cohen of The Atlantic was more effusive. Reviewing Healy’s book, he called Holmes’s opinion “the most powerful dissent in American history.”²⁸

      That was surely an exaggeration – Justice John Marshall Harlan’s dissent in Plessy v. Ferguson,²⁹ Justice Harry Blackmun’s in Bowers v. Hardwick,³⁰ or Justice Stephen Field’s in the Slaughter-House Cases³¹ are all more eloquent and persuasive, and Holmes’s own wrongheaded but historic dissent in Lochner³² has proven more influential. But Holmes’s Abrams dissent is also far from the resounding declaration of individual liberty that one might imagine given this extravagant praise.

      “Persecution for the expression of opinions,” Holmes declared in Abrams, “seems to me perfectly logical.”³³ This sentence could never have been written by Madison, Jefferson, or any of the classical liberals who gave birth to the First Amendment. Such words are actually a throwback to the pre-Constitution days of Puritan censorship, which regarded the expression of ideas as inherently dangerous. Yet they were typical of Holmes, who, like Jeremy Bentham, considered the founders’ principles of natural law and natural rights superstitious nonsense. In Holmes’s eyes, all law, all justice, all principles of right and wrong were nothing more than emotionalistic impulses, with no stronger foundation than one’s taste for a brand of beer. Democracy, he believed, uses the process of voting to aggregate people’s subjective preferences, and those desires for which people are willing to fight the hardest prevail – and become law. At bottom, law is not a process of reasoning but an arbitrary command from the majority.

      Still, Holmes thought, the majority chooses not to persecute people for expressing their opinions – not because every person has a right to state his views, but because the majority benefits from a “free trade in ideas.” The Constitution protects the “effort to change the mind of the country” because “men have realized that time has upset many fighting faiths,” and open debate is a better way to avoid error. But this freedom of debate is only a privilege society gives to citizens to achieve collective goals, and Holmes emphasized how narrow that protection was when he declared that he “never ha[d] seen any reason to doubt” that his previous rulings allowing the imprisonment of dissenters – including Eugene Debs – “were rightly decided.”³⁴

      This was exactly the opposite of the views of James Madison. The First Amendment’s author believed that persecution of opinion could never be logical or moral, because individual rights are not created at society’s pleasure but are like private property that government must respect. The “Sovereignty of the Society as vested in & exerciseable by the majority,” Madison wrote, may only do things “that could be rightfully done, by the unanimous concurrence of the members.” That meant the majority cannot legitimately violate natural rights – “Conscience for example” – which are always “beyond the legitimate reach of Sovereignty.”³⁵

      For Madison, justice and injustice, right and wrong, were prior to – and therefore imposed limits on – the authority of the ruler, whether that ruler be a single dictator or a majority of voters. Himself a wartime president, Madison never sought to jail the many voluble critics of his administration’s efforts during the War of 1812, even when some went so far as to propose seceding from the union.³⁶ Holmes had no such scruples. According to his Abrams dissent, the majority comes first, and the individual has no rights beyond government’s reach. The majority determines what is right and wrong, and although it gives people a limited opportunity to speak their minds so that it can make more informed decisions, that opportunity is not a morally obligatory right. It is only a permission based on policy considerations that may be revoked when society thinks it necessary – for example, if it chooses to jail antiwar activists like Debs.

      Holmes’s Abrams dissent also compares unfavorably to Jefferson’s Statute for Religious Freedom. Jefferson believed “God hath created the mind free” and that “attempts to influence it by temporal punishments or burthens” represented an “impious presumption of legislators and rulers,” who “have assumed dominion” of something that does not belong to them.³⁷ But for Holmes, the reverse was true. Like Bentham, Holmes believed that the individual does not own his own mind; it is only his because society has not chosen to take it away. Like any other resource, society may confiscate and distribute the individual’s freedom of conscience at will. It is the individual who “assumes dominion” – an unwarranted dominion – over his own mind, if and when he claims a right to his own self.³⁸

      This is no overstatement. Holmes – who likened the notion of rights valid against government to “shaking one’s fist at the sky, when the sky furnishes the energy that enables one to raise the fist”³⁹ – scoffed at the idea that people have a right to their own lives. “I don’t believe,” he wrote a friend, “that man always is an end in himself – that his dignity must be respected, etc.”⁴⁰ On the contrary, people belong presumptively to the state and may be conscripted into military service, deprived of their property⁴¹ or economic freedom,⁴² taxed,⁴³ censored,⁴⁴ or even forced to undergo sterilization⁴⁵ whenever society considers such acts necessary. “[T]he word liberty,” he wrote in his Lochner dissent, “is perverted when it is held to prevent the natural outcome of a dominant opinion.”⁴⁶ He viewed people as insignificant “ganglion[s]” or “grain[s] of sand” in the universe, who should “accept the vision of [them]selves as parts inseverable from the rest”