How did Oliver Wendell Holmes in less than a year switch from saying arguing against the draft — that it was tantamount to falsely shouting fire in a crowded theater — to arguing that free speech is necessary for a marketplace of ideas seek out the truth.
In March 1919 Holmes wrote the unanimous opinion in Schenck v. U.S. Charles Schenck was convicted of violating the Espionage Act of 1917 for writing a pamphlet arguing that the draft violated the 13th Amendment prohibition against involuntary servitude.
Holmes reasoned that the pamphlet posed a “clear and present danger” and: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
In October 2019 Holmes did an about face and wrote a dissent in the 7-2 conviction of pamphleteer Jacob Abrams, a Russian immigrant, for writing that workers should go on strike to prevent the U.S. from going to war against Russia. In the case of Abrams v. U.S., Holmes wrote:
The NPR Radiolab recently broadcast a nearly hour-long discussion of the reason Holmes changed his stance so quickly. Scroll down to “What up Holmes.” It makes a compelling argument as to why a man in his late 70s made such an abrupt change in stance on the First Amendment right of free speech and changed how the courts and American treats speech and press rights.