Oliver Wendell Holmes earned the reputation of the" Great Dissenter." He commonly took a different path in the interpretation of Constitutional law. His most controversial and provocative dissents involved freedom of speech. Even though he was considered to be a literal and traditional follower of the law, many felt that his decisions were ahead of his time. If he was in fact ahead of his time, would he concur more often if he sat on the Supreme Court today? The test will be to identify trends in his decisions on free speech when he served and determine how he would rule on similar cases today. The cases that will be examined to determine trends in his decisions will be Schenck v. United States, Abrams v. United States, Gitlow v. New York, and Whitney v. California. These cases will establish the way in which Holmes interpreted the First Amendment in his time on the Supreme Court. This interpretation will be compared to decisions made on free speech cases in the last twenty years. This time span has not seen significant changes in stances on free speech and can be considered to be decisions made "today." The need for cases that can be compared to Holmes' decisions and be tested by "clear and present danger" also requires this seemingly large period. These cases used to provide the current trend in free speech rulings will be Texas v. Johnson, Virginia v. Black, and Morse v. Frederick. If Homes' decisions do not deviate too greatly from those made in the cases in the last twenty years, then it can be determined that he was in fact ahead of his time. The method to compare the decisions in each time period will be to see if the cases violate Holmes' "clear and present danger" test. The comparison will show that dissents from Holmes on free speech in his time would be concurrences or majority opinions in today's realm of free speech rulings of the Supreme Court proving that he was ahead of his time.
[...] Constitutional Law and Politics. New York: W.W. Norton & Company Print. Holmes, Oliver Wendell, and Max Lerner. The Mind and Faith of Justice Holmes; His Speeches, Essays, Letters, and Judicial Opinions,. Boston: Little, Brown and Print. Holmes, Oliver Wendell, and Max Lerner. The Mind and Faith of Justice Holmes; His Speeches, Essays, Letters, and Judicial Opinions,. Boston: Little, Brown and Print. O'Brien, David M. Constitutional Law and Politics. New York: W.W. Norton & Company Print. O'Brien, David M. Constitutional Law and Politics. New [...]
[...] The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible.[21] The discrediting of the student in this dissent sounds similar to what Holmes may say on the subject. He probably would agree that students are not legitimate or influential political speakers. He could also apply his ruling in Whitney that this speech is not time sensitive. His additional of “time to answer” would be applied here. [...]
[...] The comparison will show that dissents from Holmes on free speech in his time would be concurrences or majority opinions in today's realm of free speech rulings of the Supreme Court proving that he was ahead of his time Literature Review of the test “Clear and Present Danger” The primary sources of determining the validity of the hypothesis will be the written opinions of Justice Holmes and the opinions of the more recent findings. This literature is fairly straightforward and will be analyzed by the researcher. [...]
[...] The Holmes Reader; the Life, Writings, Speeches, Constitutional Decisions, Etc. of the Late Oliver Wendell Holmes, Associate Justice of the Supreme Court of the United States, as Well as an Evaluation of His Work and Achievements by Eminent Authorities. Dobb's Ferry, N.Y.: Oceana Publications Print. Mendelson, Wallace. "The Degradation of the Clear and Present Danger Rule." The Journal of Politics 15.3 (1953): 349-55. JSTOR. Web. Mendelson, Wallace. "The Degradation of the Clear and Present Danger Rule." The Journal of Politics 15.3 (1953): 349-55. [...]
[...] The two felt that if there is time for discussion of the speech that would allegedly incite violence or danger, then there is no danger present. The “time to answer” test should be included in the test of “clear and present danger” according to the concurring opinion in Whitney.[15] The two justices agreed that unpopular ideas should be protected so long as they do not endanger anyone or have time to be discussed before violence comes into play. The review of these four cases confirms the literature reviews on the test. [...]
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