tech not searching have given up on the war. i want to find people throughout history who should not have one and are not responsible for the bleak situation they inherited and yet they prevailed. a salvage. maybe he didn't win it but they saved it. it. >> i would love to go back and talk more about this great captains in those genres of history but first of i care a little more about those you chose. >> that was targeted because everybody asks me that question. he saved the beach when i'm camping. george patton saved the american army after the humiliation and now after. i was looking particularly at situations that have chronological sweeps. all the way to david petraeus and the search but i was also looking for things that were completely a semester.

i think we could have won without patent. i think we could have one without lemonade i don't think -- lemay. the greeks would've even thought or without dallas stars, the emperor would not have recovered much of the western part of the byzantine-roman empire. i don't think there was a union general allies who could've taken atlanta at the cost that we took it, very small cost compared to was going on in virginia i don't know anybody who could've done what matthew ridgeway and i wish i could've said they were american generals, not very many could've done what david petraeus did. i was trying to look at unique individual struck history chronologically to try to remind us that even the therapeutic, sociological and of high-tech that the human qualities remain constant across time and space.

>> few readers and few historians would dispute that some of the people that you select were indeed saviors for the country. and i think there's a great example undoubtedly, he said the greek city states. they might argue with some of your other choices. such as ridgeway. because the original strategic outcome in korean were not actually achieved. so how do you respond? >> it would be valid for all five of them because they are not winners. they say the situation for others to lose or the when. for example, the greater cause, he was almost immediately forgotten and goes up to the spartans any opinions the next year. at the height of his power, but source was relieved, put on trial, died a beggar, tradition says but as you point out with ridgeway, he was only there 100

days and he made a strategic choice not to go across the 58 -- 38th parallel. in a strange way he said the american people were with macarthur when every thing is going well after and shown to a race to the 400-mile and as soon as the chinese crossed, we had the great bug out, the first time that word used. they turn on them. now they are behind me and if i go up, back up to the north to the same logistical strategic tactical situation that macarthur face, whether that was true or not i don't know, they will turn the because they are not willing to sustain this type of or this long but in retrospect moment look at the threat of north korea today, we can question his judgment but he felt at the time the nation was not in the political frame of mind to support what would be needed to crush the north koreans and the chinese north of

the 38th parallel. the same thing is true with iraq. david petraeus i think say the american cause in iraq but he left it to others whether they're going to take that legacy, that inheritance and leave a residual force and try to make sure became a consensual's society and when we done in the '40s and 50s in places like korea or in serbia. we chose not to do that but it don't think that necessarily tarnishes his achievement. >> thomas healy examines the limited interpretation of the first amendment during the beginning of the 20th century. and its transformation because of supreme court justice oliver wendell holmes opinion in the 1990 case abrams versus united states. he reports that first amendment rights were often stifle prior to the pinging and the justice himself was once a skeptic of the right to speak freely. this is about one hour. >> good afternoon, everybody. and congratulations, it's a

really big event publishing about and what a wonderful and lively informative -- that's a particularly big deal so thank you very much. i really enjoyed reading and love the. i thought we would talk about what drew you to the project and a little bit about justice homes and the people he interacted with. ..

>> and sweep away all opposition. to allow op opposition by speech

seems to indicate you think it impotent or that you do not care wholeheartedly for the result or that you doubt either your power or your premises. at this point holmes shifts direction almost very suddenly and very brilliantly, in my mind. but when men have realized that time has upset many fighting faiths, they may come to believe even more they believe the very foundations of their own conduct, that the ultimate good desired is better reached by free trade and ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. that, at any rate, is the theory of our constitution. it is an experiment as all life is an experiment. every year, if not every day, we have to wager our salvation upon some prophesy based upon

imperfect knowledge. while that experiment is part of our system, i think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. >> thanks. thanks for reading that. >> so we'll talk a little bit about the first amendment, but, of course, that paragraph is about a lot more than the first amendment, right? it's about a way of thinking about our democracy. >> sure. >> right? >> sure. >> so before we even get to that, i'd love to hear about what drew you to this project. as we heard, you're a former journalist, so i understand why you'd be interested in the first amendment as a former journalist, but what was exciting about this topic? >> it's not just self-interest that i wanted to write about the first amendment. as i said, this dissent by holmes really represents a turning point in our nation's

understanding of the first amendment. it marks a turning point in holmes' life as a justice and as a thinker, but it marks sort of the beginning of a larger transformation in the way we think about free speech. prior to 1919, free speech in this country was pretty much an empty slogan. it was an unfulfilled promise. and so the history of the protection of free speech in this country really begins in 919, and it -- 1919, and it begins with a series of cases dealing with the espionage and sedition acts passed during world war i under which many socialists and pacifists were convicted. and the court hears a number of cases in 1919, and in those early cases the court upholds the convictions of people who were prosecuted, and holmes himself writes the opinions upholding these convictions. and then he turns around eight months later and writes in this dissent. and when first amendment

professors teach the first amendment, they begin with these cases. they begin with holmes initially upholding these convictions and then, suddenly eight months later, writing this very powerful dissent. and so when i was a student, this is how i learned the first amendment, and it's how i teach my students. but there has always been this nagging question for me why is it different for holmes eight months later? we tend to gloss over it as though, oh, well, the facts of the cases were different, or there's some sort of easy explanation. and i just, that didn't sit well with me. and i thought that there must be something more to it. and i was hoping to write a story. i wanted to write a book. that was more than just a kind of academic analysis of law, that had, you know, some richness to it. and so i started thinking about

this, this change of mind. and i started thinking about how important it was to the history of free speech. and when i began to dig into it, it became clear to me that it was an incredibly moving and affecting story that involves much more than just abstract ideas, but involved human relationships. and so that's how i got drawn into it. >> wonderful. so tell us a little bit about the process of research and writing. so how did you actually enter this question? was it some sources that you thought were particularly revealing, some people that you had talked to that, you know, i guess at this point there are not very many people who knew home, but there might be a few. or were there questions that you wanted to answer? how did you engage the topic and give us this wonderful book? >> so i started doing some preliminary research, reading all the biographies of holmes, reading all of his published letters. he was a very prolific

correspondent, and although he instructed most of the people he corresponded with to burn his letters, thankfully, most of them did not. and so most of them survived. and so i started reading those letters, the published ones and the unpublished ones all of which are archived at harvard. and then what i started doing is i started making a timeline of holmes' life during this period of time from roughly the middle of 1918 until sometime in 1920. and i made a day by day timeline of everything that was going on in his life, the cases that the court was deciding, the letters that he was writing, the books that he read. holmes kept a list of every book he read every year of his life from, you know, in his 30s on. and he read a ton, very thick books with just the titles of the books that he read. in the summers he would read sometimes 40, 50, 60 books

during his summer recess. so i started reading the books he read during the summer trying to find little clues. i, you know, scoured newspapers to figure out what was going on. i looked into what was going on in the lives of the people he was friends with, and so i created this timeline. and, you know, it's a two-year timeline, and i just kept looking at it and thinking about what's going on in his life and how all of these pieces fit together. and for me, that's when i really began to understand why he changed his mind. because there isn't, there isn't some smoking gun. there's not one moment that you can point to and say, aha, that's why he changed and that's when he changed it. it's a kind of gradual process. but in order to really understand that process, you have to see it in order, in chronological order. and i think that's what had been missing prior to this book. there are some scholars who had delved into this a little bit and pointed out pieces of the

story, but at least in my mind it was never clear how any of it fit together. and so when i saw that in a timeline, that's, for we, that was where the real sort of revelation came. >> yeah. that's wonderful. so before this you and i were talking about historians and how historians will view the book, and as a historian, i will tell you it's a wonderful book. >> thank you. >> but what's interesting as you just described that is i don't think most historians would have approached it that way. that's why it's wonderful that we have lots of people doing history. i mean, this might be pushing it a little bit, but you kind of approach it as a journalist. >> right. i did. and as a storyteller really. i mean, the vice that i tried to -- the advice that i tried to give myself which is to show, not tell. i didn't want to tell the reader why holmes changed his mind, i wanted to show holmes changing his mind. so there are very few times in the narrative where i as the narrator interject commentary or analysis.

there's sometimes when i have to. but for the most part, i try to let the events speak for themselves, and i hope that they do. and i hope that when the reader finishes, the reader understands everything that i would have told the reader had i sat down and said here is why holmes changed his mind, bullet point one, bullet point two, bullet point three. you know, i had written an article for academics in which i say that because that's what academics are used to. but, you know, a, i don't think that doing it that way gives you as rich a sense of what's going on. i think you miss something. and, b, it's just not as fun for the writer or the reader to do it that way. >> yeah, wonderful. so in a second let's talk about the people who influenced him, but first let's talk about holmes a little bit. >> sure. >> as you acknowledged, for a jurist, holmes has gotten a fair amount of anticipation, there are many books about him, but he's still a fascinating person. give us a little sense of him as somebody who immersed himself in

this really important person. how would you describe what flaws and strengths would you describe him as having? >> sure. first, a couple of basic biographical details. holmes is born in 1841, so he fights in the civil war for the union styled, of course. side, of course. he comes from an old boston family. his father, more famous than the son for a long time, well nope as a writer and -- well known as a writer and a medical professor and coined the term boston braman. holmes goes to harvard college, law school, as i said, he fights in the civil war, is wounded three times. twice nearly dies. throws himself into law after the war and becomes a judge in massachusetts and then is appointed to the supreme court. my book takes place when he's, at the latter stage of his career. he's around 77 years old when the book starts, and he is, he

has an odd reputation at this time. he's not the looming figure that he is for us today. you know, he's generally regarded now as the greatest judge in american history. people might qifl -- quibble about that, but you can say that and back it up reasonably. when this book starts, that's not the case. he was a very philosophical, cerebral person, and so a lot of people were sort of skeptical of the way he approached the law. he seemed too cerebral, too sort of smart for his own good. one critic described him as a literary fellow, just cared too much about the way he phrased things and not as solid as he should be, sort of obscure in the way he writes about the law. but to a sort of growing group of young progressives and intellectuals, he's a really inspiring, romantic figure

because he does have this philosophical, poetic quality to him. he's given these very moving speeches about having fought in the war, and e has coined all -- he has coined all of these terrific phrases, and his opinions are so much livelier and more interesting to read than any of the other justices op the supreme court. and so for the young men in the book that influence him, you know, he's the this sort of philosopher poet who's like a breath of fresh air in a sort of musty world of government and law. and so i think that's his real strength, is that he sort of breaks out of the law. he's more than just a judge. he's really, you know, the only judge in american history who is a sort of folk hero. and he, i think his great contribution is in part it's his

opinions, but more so it's just the persona that he created. and so i think that's the real strength. weakness is that he, um, he didn't always think through his ideas as fully as he might have. he becomes a little sloppy in the later parts of his career. he sort of just relies upon things that he's said earlier in his life. he becomes, in a way, almost a closed loop. and so when you read things that holmes writes, sometimes today don't always add up. it's not always internally coherent or consistent. that being said, i think that's one of the fun things about thinking about holmes, is that there are all these contradictions and tensions. he's a very sort of rich, complex character which, if you want a character in a book, that's what you want. i'll contrast him with his fellow justice, louis brandeis,

who writes another incredibly eloquent opinion about free speech, but brandeis doesn't have any inner contradictions, or not as many. you know, it's pretty clear for brandeis why he believes in free speech and, therefore, it's less interesting. because i think he doesn't give us a way to explore our own mixed feelings about these issues. >> let's talk about the people who influence him now. >> sure. >> as you mentioned, there are a lot of young people who looked up to him and also tried to influence him. i don't think you could cover them all in the next 10 or 15 minutes, but i'll allow you to pick a couple that you think are particularly interesting and relevant. >> sure. yeah. so mostly these are young men, intellectuals, lawyers, academics. mostly progressive if not radical. quite a few were jewish. which is interesting, because holmes is, you know, comes from old boston braman family. and they're young.

so one of the most influential is an individual named harold laske who most people today don't remember, although some might have heard of him. he at the time is 24 years old. he's an instructor at harvard, incredibly liberal. as i describe him, he's just to the right of marx. and he later goes on to become the leader of the labor party during world war ii in england. and holmes views him almost as a son. holmes had no children. and the two of them just hit it off even though they were so diametrically opposed in so many ways in terms of age and religion and political beliefs. they, you know, holmes really admired laske'ser you decision, he's an incredibly brilliant young man with this irrepressible personality, so laske has an incredible influence on holmes.

felix frankfurter is another influence, he later sits on the supreme court in holmes' seat. and he has an important influence on holmes. the editors of the new republic magazine which at that time was literally new. it had been founded in 1914, so it was the new republic. not the old new republic that we know now. and they were close to holmes. holmes generally didn't read the newspapers, but he read the new republic. and all of these men gathered, these men and more gathered or congregated around the house in washington, d.c. in dupont circle that they called the house of truth. they called it that because it served as a kind of literary legal salon where these young thinkers would gather and talk about the current events of the day but also larger questions of philosophy. and holmes would stop in after a hearing at the court and have a

drink or play solitary or cards with the men, and these men, they really worshiped holmes. and the fact that he gave them this attention, to them, was remarkable. for him what he got out of it is they were starting to give him the reck fission that he felt he -- recognition that he felt he deserved. and it also helped him recapture the excitement of his youth. when he was young, he had been a part of the metaphysical club with william james and charles sanders pierce and all these young thinkers in boston, and this is sort of a way for him to recapture that at a later stage in his life. >> wonderful. so i'm terrible at quotes, but -- i'm sure you'll remember this one. one of holmes' famous quotes was that the path of the law has been experienced -- the path of the law has not been -- >> the life of the law has not been logic, it has been experience. >> the life of the law has not been logic, it's been experience. so there was a lot going on in

1918, 1919 -- >> sure. >> -- that in addition to these people is influencing how they're interacting and what holmes is thinking. maybe you could talk about the summer of 1919 in particular and what was going on and how it shaped what he was thinking. >> sure. so the red summer, the summer of 1919, the beginning of the first red scare. we had just come out of the war. there has been a lot of suppression of speech during the war. nearly 2,000 indictments were brought under the espionage and sedition actions against people who criticized the war, and a lot of these are, you know, mainstream people. ewe gene debs, the -- eugene debs, the leader of the socialist property when he ran for president in 1912, 6% of a popular vote for a candidate is a lot. so these are, you know, not fringe people who are being prosecuted. he's sent to jail for ten years for being critical of the war. so we've just come out of that experience. and now we enter this sort of

period of hysteria. the russian revolution has taken place, communism is spreading, and there's a fear that it's going to spread in the united states. and so all of this sort of persecution of german sympathizers and pacifists is now transferred to anyone who might have any kind of communist sympathies. what's really interesting about this is that who of holmes' friends, two of his closest friends, laske and frankfurter, they get caught up in this witch hunt. they are attacked for their own radical views. and i think one of the implicit three shes of the book is it's the experience of watching his own friends come under attack for their views that helps to lead holmes to this conversion, that these abstract ideas of free speech become for him very real and personal and concrete. and so this famous line from

holmes about the life of the law has not been logic, it has been experience. he wrote that years before, but in a way i think that the this story is a sort of illustration of that. he starts off in that pass am i read talking about -- passage i read talking about the logic of persecution. he doesn't ultimately decide that it's not logical, he just decides that as a result of experience we've learned better, you know? when men have realized that time has upset many fighting faiths. well, why have we realized it? because of our experience. why has holmes realized it? because of his experience watching everything that's going on in the country and in particular how it becomes personal for him. >> great. we teed up a lot of questions, and i know people want to ask them. i want to just take a couple of minutes to talk about some present-day implications, so just a couple of questions. one about the operations of the supreme court. one of the things i love about the book is you really capture how they interacted, and one of the things that i found

fascinating is that, in fact, the supreme court justices didn't even have offices back in this period. they worked from home. >> right. they were freelancers. >> freelancers, no offices. so there are lots of things that are different about the way the supreme court operates today than then, but do you want to highlight a couple that you think are particularly interesting? >> that was one of the fun aspects of working on the book, was just seeing how things worked. yes, the supreme court did not have its current building. that was constructed in the '30s. they met in the old senate chamber in the capitol, and they had a conference room downstairs that was just down the hall from the senate barbershop, this sort of musty, cigar smoke-filled room, but they did all their work at home. they didn't have four law clerks like they do now. they each had a secretary, but they didn't all even hire a secretary, and the secretary, usually a young law graduate,

but did relatively menial tasks. you know, they didn't write the opinions. the justices wrote their opinions. the opinions were much shorter, which was nice. you know, you can read a holmes opinion in, you know, 15, 10 minutes and comprehend it as opposed to the 200-page opinions the court issues now. one of the things that was really interesting was just how much more casual the interaction was between the justices and other people. or i guess another way of putting this is how willing the justices seemed to be to talk with friends and acquaintances about the issues that were before them. i mean, holmes' letters are filled with discussions about the cases that are before the court. i don't think he ever gives anything away ahead of a decision, but he's always talking about the decisions and the personalities on the court, and people are engaging him with these discussions.

there's a scene in the book where in the summer of 1919 harold laske arranges a meeting between holmes and a young first amendment scholar at harvard, zachariah chase si, who has written an article criticizing the court's decisions on free speech issues. so harold laske gets the two together for tea during the summer to talk about free speech and to try to change holmes' mind. well, this makes, you know, antonin scalia going duck hunting with dick cheney look tame by comparison, you know? [laughter] to actually set up a meeting to try to change the mind of a supreme court justice outside of the formal, you know, argument process is really quite striking. >> yeah. well, last question before we turn it over to the audience, as a former journalist and somebody who thinks about the first amendment all the time, i have to ask you about your thoughts of the connection between these issues and things we're struggling with today; internet privacy, the debates over the

nsa, you know, counterterrorism and your debates over things like wikileaks. i mean, there's so many issues and, you know, in two minutes give me your thoughts about some aspects of these. i hesitate to ask you what would holmes think of these things, because that's just a little bit too trite, but, you know, what you've learned, how it informs your thinking about some of those questions. >> right. so the issues in their specifics are very different today than they were there when we're talking about classified documents and whether government employees can be prosecuted for leaking those. but i think the larger theme or the larger question about the balance between national security on the one hand and civil liberties on the other hand is very, is very similar, you know? this is a time period which people are very scared and concerned about their national security, and they're giving government a relatively free hand to do what government wants, and then government sometimes oversteps, and then there's concern about the

implications of that. i don't think you can draw lessons about the specific things today, but i think there are two broader lessons you could draw. one, when you look back at this time period, you realize how easy it is to overstate the dangers that we face and how frequently we do that. and it's very common for the court to say about an earlier time, well, they were hysterical and panicky, with but now the threat is real. so even though they might have, you know, overreacted then, our reaction now is reasonable. so that's one thing, i think, that's helpful to learn. and the other thing is just to realize that when these issues become personal, when we're not talking about people on the fringes of society, but when people you know are affected or people you could imagine being affected, then i think that the issue of free speech becomes much more salient for all of us. >> we have a lot of time for

questions, so i'm certain this audience will have many questions. robin has the mic, and she's going to walk around the take people. please introduce yourself, say your name and then, please, ask your questions. >> rich saks. thank you so much for that talk. i mean, very intellectual, very smart, neat talk. i like that. so my question then would be part of what you were talking about oliver wendell holmes was sort of parentally above it all -- mentally above it all in a sense, and people didn't really like that, is that maybe the major barrier to free speech across the world? you know, like we don't like this dictator,over we don't like -- or we don't like the this, that or the other thing, and we can't talk so well as an oliver wendell holmes, but we can bring them down to our level by physical force, so is that the great barrier to free speech then and now? >> the detachment and the sort of difficulty breaking through

to people? be i mean, i suppose it could be. i mean, on the one hand it seems like your question gets at, you know, should we be engaged in more aggressive diplomacy as opposed to force as a country. on the other hand, your question might be taken to ask, you know, is what it takes to advance free speech for free speech to become personal to people? to the extent that that's what you're asking, i kind of think that's the case. i think that's the case with lots of legal issues, you know? the justices of the supreme court, they are people, i suppose, but they're relatively removed -- [laughter] from the concerns of most of us. and i think that anytime they can understand the sort of personal consequences of legal questions, you know, their decisions are going to be more informed and hopefully more accurate. so, yeah, i do think that that

kind of detachment or sort of having your head in the clouds is certainly a barrier to, you know, a deeper understanding of free speech. >> thomas, you mentioned in the book -- you mentioned today and in the book that holmes was wounded three times in the civil war, and you mentioned frequently how his civil war experience affected the way he looked at the world. and the paragraph that you read to us is a fairly harsh view of the world, right? i mean, it states that we're going to argue, we're going to fight a lot, right? but his position is that that's part of a democracy. >> >> right. >> right? and we have this disagreement, and the better result will come out when we do that. >> absolutely. >> that's hard to accept. >> l and that's why he initially thinks not just is it okay to scream at one another, but it's okay to kill one another if the other fellow disagrees. he ultimately realizes that if we're going to have any kind of confidence in the decisions of the actions that we take, we

have to be able to hear all competing view points. that's the only way in which we can feel, you know, assured going forward in our decisions. but, yes, you know, he starts off with this very sort of harsh world that is informed by his experience of fighting his fellow countrymen which is, you know, what is that but disagreeing and killing the other fellow when he disagrees. >> [inaudible] holmes was about 78, i think, when he wrote that opinion. >> yes. >> i wonder if you would comment if you think there is anything to factor in on the basis of advanced age. 78 in 1918 is today's 90. >> uh-huh. >> and i wonder if you would comment about this, which i think is a little bit different from time on the court or time as a judge and so on. >> sure. well, i don't think -- if what you're asking is whether holmes,

you know, was becoming sort of soft in the head or anything like that, i don't think that's the case. holmes is very sharp at point. he continues to be sharp for a number of years on the court. if what you're asking is whether sort of approaching mortality makes holmes more sort of sensitive to his legacy or to personal relationships, i think that's certainly possible. i think that, you know, these young friends of him certainly gave him a new lease on life, and he was certainly very susceptible to their influence in a way that he might not have been at an earlier point in his life. he later, you know, reminisced about this period in his life as being one of the happiest, you know, the stretch of, you know, five, ten years during the 19 teens when he's going to the house of truth as being one of the happiest periods of his

life. does that have something to do with his age? it could, i suppose. maybe at this point he's 40 longer -- he's no longer as busy trying to get somewhere or accomplish something, he's, you know, he's sort of more in the moment. i think that's certainly possible. >> please. >> my name is irv gross, and i want to thank you both, it was an interesting presentation. to what extent was holmes and/or his contemporaries or predecessors on the court influenced by the original intent of the framers of the constitution? >> very good question. in general, holmes was not what one would call today an originalist. holmes believed very much in an evolving constitution, and that the people who wrote the constitution could not have imagined the being that they had brought forth.

and so i don't think in general he, you know, he was driven by a kind of, you know, obsession with what the founding generation would have thought. remember, too, that holmes is not as far away from the founding generation as we are having been born in 1841 and, you know, potentially having known members of the founding generation or met members of the founding generation there might have been less of a sense of, oh, this sort of distant past that we have to get in touch with. holmes might have thought that he was very well in touch with that past because it wasn't too far past. that said, there is an aspect of his decision in which he does rely a little bit on early developments in our history. when holmes writes that this is the theory of our constitution, the idea that the best test of

truth is the ability of the thought to get itself accepted in the competition of the market, he has to contend with the fact that in 1798 the country passed the sedition act of 1798 under which people were prosecuted merely for criticizing the government. and what holmes does in this opinion is he says, well, that was repudiated by jefferson when he took office and by congress when congress repaid the fines that have been levied under the sedition act of 1798. and so he does at least in that way rely on some earlier history to support his assertion that it's the theory of our constitution that we should let ideas fight it out in competition of the market. >> as a follow-up there, as you, i think you mentioned briefly justice holmes had a very interesting view on the bill of

rights in general and on the role of the judiciary in protecting individual rights. and you mentioned it briefly, but it's just so important, i think, that if you could talk just for a minute about that. >> sure. and it's one of the things a that makes this decision so surprising and interesting. holmes is one of the early advocates of judicial restraint. the idea that judges should not stand in the way of what the majority wants to do, that they shouldn't use individual rights as a basis to strike down what the elected officials, you know, in the white house and the state legislatures and in congress had decided. there's this line that he liked to repeat, and he said if my, you know, fellow countrymen want to go to hell, i will help them. it's my job. he didn't think it was the role of courts to stand in the way of what the majority wanted to do. that's one of the reasons that he was a hero to these young progressives, because in the early 20th century

constitutional rights were often used to strike down progressive legislation, progressive labor laws in particular. and holmes had dissented from those decisions not because he supported progressive labor legislation. he didn't really care. but because he thought that the courts had no business striking down what a majority wanted to do. and that's the perspective that he starts with and why it's so surprising that he then turns around in this context and says, well, now we should strike down what the majority did. the majority, you know, passed the espionage and sedition acts and prosecuting people, but as a court we should step in. and this is really the beginning of what comes to be known as the double standard in constitutional law. where courts scrutinize very closely regulations of private activity, speech, reproductive

rights, that sort of thing but don't scrutinize very closely economic legislation. it all, all that has its roots in in this opinion. >> please. >> good afternoon. my name is gamel. for listening to you and for the rest of my knowledge, justice holmes, he, he was right there at the beginning of, the beginning of the pragmatic generation. were they kind of reviewing that kind of dogmatic idealism. so for them the freedom of the speech a be, it was about having an educated opinion about those original things that that they believed in. >> right. >> so fast forward to the baby boomer generation who one way or

another they rush into the existentialism, and there is the next generation. so here as baby boomers choose existentialism consciously, then the new generation which is practically us, they raise us existential. so for existential not my, you don't have to have that -- philosophy, you don't have to do your homework. you just, you just have a shortcut, and it is what you think it is. and if you are not happy about it, go right on -- >> sure. >> you know, i wish you could compare. >> yes. it's a very interesting question. basically, it sounds to me like you are comparing on the one hand pragmatism with, on the other hand, ideology. and pragmatism is, you know, in some ways presented as a kind of absence of ideology. an idea is good if it works just

the way a fork is good if it helps you eat food. and holmes was very much a part of the development of this notion of pragmatism. there's an excellent book called the metaphysical club which sort of recounts the development of pragmatism in this country through the stories of holmes and william james and other individuals in sort of mid, late 19th century america. and holmes does reject ideology, you know? he saw what ideology did in the civil war, you know? he saw the horrors that ideology produced. and so he was very skeptical of the notion that there was some objective truth out there. and you can see that theme very prominently in his opinion. it's because of skepticism about objective truth that we have to allow people to speak, because what we think is the truth today we may discover tomorrow is not the truth. and the only way we'll find out is if we keep the debate and the

discussion going. and i think that people who are more ideological and think, no, no, i've got the truth, they're less patient with that, right? because their view is, well, you know, this is the truth, and i don't need to hear what the other side says. i can shut down the debate, because i've already arrived at the truth. and so i do think that there is a sort of tension there, conflict, i guess, between prague thattism and ideology, and i think that holmes' opinion represents the more pragmatic view of things. >> if i could pick up on -- >> [inaudible] >> educate. well, yes. i mean, he certainly believed that your opinions had to be informed and that more importantly your actions have to be informed. and that's why it's okay to act in the face of up certainty -- uncertainty, right? he wasn't, you know, he wasn't saying, well, just because we can't know the truth means we

don't ever act. just the opposite. he thought, yeah, we have to act. and so even if we're not sure of the truth, we still have to act. but the one way in which we cannot act is to suppress speech because it's only having heard all the ideas that are out there that we can be confident that the action we're taking is the best one we can make at this given point. >> i also wanted to pick up on that they would, because i i -- thread, because i think all the progressives thought that was crucial to the debate. and we are having debates about, you know, the level of understanding that we have in our debates today. and i don't know whether you want to comment on that as a journalist, it's something you also struggled with a lot. what you were trying to do often was educate us about some of these debates. but the context was different then in some ways than what we are struggling with today. >> right. i don't know if, you know, people are sort of less interested in gathering information today. it seems to me that we have, you know, very lively debate and

discussion in this society. i guess maybe there is, you know, a little bit more -- well, maybe a lot more partisanship. and people sort of, you know, segmenting off. and you've got the people who listen to, you know, fox news and the people who listen to msnbc and maybe they're not talking to each other in a way they could. and maybe that's a concern. i think there was less of that then although, you know, it's hard to know. right. >> another question. please. >> hello. my name is jimmy berry, and i was wondering so in this day and age there's so many different ways to voice your opinion, like the social media and things like that. i was wondering would you say there is still at all any kind of punishment for voicing an opinion that's unpopular? maybe not as extreme as like 1919, but would you say there is? >> well, we've come a long way. i mean, there's extraordinary

protections for free speech in this country, and for the most part i think it's fair to say that gone are the days when you can be punished merely for the ideas you express. the supreme court has done a pretty admirable job in protecting even unpopular speakers. the debate we're having now is more about how can we get the information we need to have an educated debate. so, you know, is edward snowden being prosecuted, or, you know, has he been indicted because of his ideas or because the government needs to be able to enforce the laws against leaking classified documents if it wants to sort of maintain national security? you know, there may be a little bit of the former, but with i think it's mostly the latter. you know, bradley manning, i

think, is in the same situation. now, going after him as aggressively as the government did and, you know, seeking the kind of punishment that the government sought might suggest that they're selectively targeting people who are challenging what they've done, and that's certainly worrying. you know, the social media is an interesting part of the equation now. it's actually very interesting in the context of schools, student speech. and that's raised all sorts of questions. to what extent can students be disciplined at school for things that they put on facebook at home when those students are accessing facebook at school, and so it's having disruptive effect. and, you know, so social media i do think has greatly expanded our ability to speak and in some ways democratized our ability to get our message out and raised, at the same time, lots of very

tricky questions about free speech. >> jerry ableson. what was the general reaction to this opinion from his fellow justices and also general opinion of academia and population? .. three of his colleagues show up at his home. and their led us into this study, and in the presence of his wife, they ask him not to

publish the decent. the court hasn't issued the opinion yet. the opinion will be issued next week and the three members asking for the sake of national security not to publish the decent. they are worried that coming from sort of venerable holmes, a civil war veteran, and the new input family that this will give e-mini and it will weaken the country to solve in the fight against the red menace. holmes listened very patiently. their request, very civil discussion is sort of even affectionate but ultimately says no, we have a duty to we know about this because when they are let into his study he tells his secretary, state in the adjoining room.

that's what the secretary works. the second here's everything that is said and the secretary is close friends with the dean acheson whose that your secretary to justice brandeis. years later dean acheson writes a memoir of his early years in washington and he recounts his story. so that was the reaction. brandeis joined the opinion and support holmes. in the public, the reaction was mixed. progressives were ecstatic and praise it. the editors in the republic published a tribute to holmes. they published his dissent in full. all of holmes' friends right is incredibly poignant and emotional letters of gratitude to holmes. in academia it is received less well. one of holmes' longtime friends a guy named john whitmore,

professor of law, writes is just scathing critique of holmes' dissent in a long review article and basically accuses holmes of being naïve and unaware of the threats the country faced. and a number of other people say things along those lines. so it's mixed. it's a dissenting opinion, so even though people, some people were upset with it, it didn't have an impact right away. their concern was that ultimate would have an impact. they could see it would be very powerful and that's what he was worried about. of course, he was right to be worried because although this was a dissenting opinion it ultimately there's the big it takes a long time but ultimately the court invokes holmes' dissent as a sort of foundational statement of our commitment to free speech, and it takes this place in our culture that it has today.

>> was the justification for suppressing any speech? since the first amendment makes no such distinction. first minutes of the government shall make no law abridging the freedom of speech. doesn't talk about good speech or bad speech or dangerous speech or anything like that. so where did you get all these victories? because the court goes through dozens of theories of what speech is not protected. >> a great question. i always asked my students exact same question and now i'm the one -- socom you're a close reader of the first amendment, and you're right it does make no law, and justice hugo black used to fight that all the time. make no law. it doesn't say make not any bad laws. it does make no law. i think most first amendment scholars, myself included, think that an absolutist interpretation of the first amendment is simply not

possible. -- plausible. there are too many ways that speech is used most of us think should not b be protected. throughout the few examples for perjury. you perjure yourself. does that mean you're protected by the first amendment, or fraud or solicitation for murder? is always in which we use words and suggest that the mere fact that you do these things through words means they are protected would be very problematic. holmes deals with this problem and so. not any abrams dissent but eight months earlier in an earlier decision. he provides us an example and he says he speech would not protect a man who falsely shouts fire in a crowded theater. as an example of why we can't adopt natural absolute interpretation. it's a good example for one because harm will result. if you have a crowded theater

and someone falsely shouts fire, they would be a rush to the door. people would get trampled. but more importantly a good example because the harm that result in result immediately before we have any chance to avert the harm. and so that then forms the basis for holmes is standard the ultimate adopt, which is a clear and present danger standard. you note from tom clancy. before tom clancy made it famous or made it more famous was a line in homeless opinion, and the idea that speech is protected unless it poses a clear and present danger unless the danger is one that we can avert any other way. and you can avert the stampede in the theater in any other way other than to say ahead of time it's against the law to do it. i think it would be very hard to

adopt absolute interpretation of the first amendment. the problem then becomes how do you figure out what is protected and what's not, and that's what gives people like me a job is to come up with theories and explanations. >> let's talk about giving character in the book, a judge, and wonderful name, and he plays -- is not a young person. he's a middle-aged person but he also plays a role in justice holmes changing of minds. and you talk about that? i think an interesting interplay of a couple of judges about the question. >> learned hand was on the district court in new york at the time. he's in his mid '40s. is very well-regarded judge, very solid offer coal -- philosophical been. he hears from when the first cases under the espionage act, one of the first judge to interpret the act and deal with these free speech questions that

it raises. he adopts a very narrow construction of the espionage act. so to leave a lot hamper free speech. the doses before holmes writes any of these opinions. and is reversed by the second circuit. but he's upset about this and thinks he was right. and it is in that started this whole process among these men trying to change the holmes' mind. because the two men meet in the summer of 1918. just by chance on the train between washington, d.c. and boston, or maybe hand is going from new york to boston. they run into each other in hand starts talking to holmes about tolerance. and holmes' response is, well, -- this sort of horrified and. a template holmes has said this and he doesn't know how to respond and holmes runs away and

goes to join his wife as they pulled into boston. so hand follows up with a letter to holmes in which he makes a more sustained case for tolerance and holmes response an entry on correspondence over the next year about free speech. so hand it really deserves a lot of the credit here for getting the process started. >> we have time for one more question, but you point out in a poignant story about hand and how his life turns in a very different direction on the issue of the first amendment. >> in the epilogue i sort of tie up the loose ends of the other characters, and what happens is that although the country moves in a more tolerant direction, and goes the other way. so in the late '40s, he is now the chief judge of the second circuit, and he gets a case involving the members of the commonest party of america who have been prosecuted under the

smith act for teaching the principles of lenin and marx. and upholds the decision and essentially got the clear and present danger test holmes had articulated several decades before, and so the question is why this hand change his mind but in the opposite direction? and the answer is that and, as his career progresses, he came to believe more and more in the idea of judicial restraint. came to believe that the protections of the bill of rights were merely -- they were not judicially enforceable. he even criticized the supreme court's decision in brown v. board of education argued that the court shouldn't be imposing its view of equality on the country. and it really stems not from his support of mccarthyism. he is horrified by mccarthyism. he simply came to believe even

more strong than he had earlier in his crib that it wasn't the role of judges to interfere with what the results of the poll process was. >> the law is always contingent and we always are contesting it and it will never be perfect, and that is why the point we continue this kind of conversationconversations and te does these these kind of books. so thank you. the book is "the great dissent: how oliver wendell holmes changed his mind - and changed the history of free speech in america." thomas will be signing books downstairs in the lobby and help you join us there. thanks again. >> thanks so much. [applause]

>> [inaudible conversations] >> off an astrophysicist neil degrasse tyson on america's call for scientists and engineers. >> as nasa's future goes, so, too, is about of america. and if nasa is healthy, then you don't need a program to convince people that science and engineering is good to do. because they will see it writ large on the paper. there will be calls for engineers to help us go ice fishing on europa where there's an ocean of water that's been look would for billions of years. we're going to dig through the source of mars and look for life. that will give me the best biologist. look at the nasa portfolio today. it's got biology, chemistry, physics, geology, planetary geology, aerospace engineers, mechanical engineers, electrical engineers. all the s.t.e.m. fields, science, technology, engineering and math represented in the national portfolio.

a healthy nasa hopes that. a healthy nasa is a flywheel that society casts for innovations. >> over the past 15 years booktv has aired over 40,000 programs about nonfiction books and authors. booktv every weekend on c-span2. >> booktv marks our 15th anniversary and this weekend we look back at 2006. the pulitzer prize for biography or autobiography went -- to look at the life of robert oppenheimer, the physicist who alleges efforts to create the atomic bomb. >> you spend the rest of his life after hiroshima trying to contain the bomb. this book is relevant to our air. his life and work stands to a warning to us all. in the late '40s, we'll hear oppenheimer's voice, in the late

1940s he was invited to an executive session of the u.s. senate and he was asked by senator, this is about 1947, two years after hiroshima, would it be possible, doctor oppenheimer, for four or five men to construct a crude atomic device and put it in a suitcase or a crate and smuggling aboard a ship engineer barber? and oppenheimer said yes, of course that would be pretty easy. the senator, startled, said, what is our defense against this? oppenheimer could be rather rudely witty at times, and he stepped back, well, you could get a screwdriver and open up these crates and every suitcase and expecting. there is no defense. >> booktv now in its 15th year on c-span2 is looking back

at authors, books and publishing news. you can watch all of the programs from the past 15 years online at booktv.org. >> up next on booktv, afterwards, i guess those this week is sally quinn. she is the cocreator of the "washington post" blog "on faith." she ended his richard dawkins about his latest book, "an appetite for wonder." this program is about one hour. >> host: so richard, i can't help but notice and admire your time. which has penguins on it. is the significance to that, and biological significance tragedy these are chinstrap england but it's hand-painted by