what's really interesting about that case is that oliver wendell holmes wrote the opinion upholding the lower court's decision that jay fox was guilty of publishing matter intended to disrespect the law. what's interesting about that is that oliver wendell holmes would later become, you know, not too long after this known for his free speech opinions and upholding the first amendment. so, and actually a lot of the ideas that jay fox and his attorneys were putting forward in favor of free speech would later -- in a somewhat different form -- be used by oliver wendell holmes in his opinions. so, you know, but it was really, i think, it was during world war i when the espionage and the sedition act were passed, and those were much more stringent rules, and also they were federal. and it was during that time that his thinking changed. i respect what they did in home even though it wasn't successful because they were trying to experiment with something that was better. and i think even though they failed, they actually gave us a gift in terms of a model. we get to learn from their experience

the library of congress has the personal library of oliver wendell holmes, ralph ellison. you think about not only what people produce, the manuscript, the draft but was where they reading, what were these people getting inspiration for and from? we are putting those types of things and then thomas jefferson's library. >> that is important when you look at how thomas jefferson really helped the library of congress. >> after the fire, retired to monticello and the largest private library in the united states and offered, sell the library to the library of congress to the nation and there should be no subject a member of congress should not have to refer and had 6000 books. back in those days, there were books on every subject in different languages. you can see some of the original books, filled them in over time. >> you have some amazing things that are being done. past forward from 6000 books from thomas jefferson from the 1800s to today, on average, how many items does the library receive each day? >> every working day, just because of getting deliveries, 20,000 items. 2

. >> we heard the name oliver wendell holmes. who were the names of the other justices that people would know about? >> it may be again, i'm a little bit of a -- david brewer might have. he was the nephew of steven field and connected to a family that had pretty strong ties in america. it was joseph mckenna and and day and white. none of these people were particularly famous lawyers. >> rufus peckham went on to write the book -- can you tell us who he was? >> he was a new yorker, he had been on the court for about 10 years at this time. i can't remember who he was appointed by either. generally conservative views. he primarily voted against any labor restrictions. >> interestingly enough, it sounds like lachner's attorneys have a good case but they don't really. i think they had a hard case going in. most of the delivery of contract cases that were developed were state court opinions, there are only two court opinions that were coming in that were federal court opinions. one was upheld an eight hour day on mining and manufacturin

host: we will end more about all of her wendell holmes and how it may have affected -- oliver wendellmes and how it may have affected. >> the civil war affected holmes. strain every part of the national fabric to preserve the country. hea very short time after joined the 20th regiment as the first lieutenant, he was engaged in a battle. as he says in his diary entry side,he was shot from the the bullet went through the fleshy part of his chest, directly across his chest and exited out the other side. the bullet ended up in his clothing and the surgeon gave it to him afterwards. his next significant civil war activity was a bottle of antietam when he and his regiment, and a couple of other regiments were suddenly surrounded by confederate troops led by stonewall jackson. shot in the fleshy part of the shoulder and the neck. miss any vitaln organs, or any vital blood any vital missed organs, or any vital lead versus -- vessels. his family learned of it when they heard from leduc saying, captain holmes is wounded. this was a town in maryland. had a severe case of what i believe to be sur

>> it was about oliver wendell holmes and at the end of the movie, he talks about donating this handba and that to the dift institutions but he says i will give my books to the library of congress. it's the manuscripts, the draft, but what were they reading and what were the people getting inspiration for so we will be putting those kind of things on display and of course we have thomas jefferson's fiber race and re-creating that. he had already retired to monticello and offered to sellar his library to the congress, to the nation because basically there should be no subject that a matter of congress shouldn't have to refer. there were a lot of books in different subject languages and so those were the books at the jefferson building now you can see some of the original books as well as we build them in overtime. >> you have had some really amazing things that are being done. fast forward thomas jefferson in the 18 hundreds to today in average how many has the library received each day? >> at a working day and that is because of getting the, just deliveries. so think about that, 20,000

. >> if i was in a time machine before oliver wendell holmes, one of the reasons why sound bites don't work well and everyone who wants to restrict speech he did not mean it as a sweeping justification but to chip away. brandenburg is the ultimate example the supreme court ruled that you could caramelized speech. because they struck down the language but in striking that down they endorsed the idea to have violent speech we have a hard time accepting speech as violence so what you can see is how words can be treated like a murder weapon and what that implies what you had in this case which is abundantly obvious is you have to do teenagers both of whom had emotional difficulties with diagnose problems they were struggling with and brought together in a moment of tragedy that was multiplied. >> i heard what you said as a qualifier so you think there is no amount or quality in a text horror action if that commits to a violent act?. >> there are plenty of crimes based on words a conspiracy in terms of a criminal act but the words of sols are treated not just as a weapon. >> but in the mans

that was oliver wendell holmes. in the newspaper business, we call that too good to check.[laughter] michelle: use a couple of qualifying words. robert: i could not verify that this is true. he acknowledged he was there. meigs, i think it is hard, michelle, reading between the lines, i think he must have just lted.ed -- exu he was very happy that he finally had that monkey off his back. he was so happy and so highly self-regarded and so egotistical, he wrote a memo to his soldiers recounting their bravery and the dateline was something like, meigs headquarters. now it is in the official record. michelle: from that exultation to finally getting to command troops in the field to the death of his son, can you tell us what happened and how that impacted him? robert: i think i will do this in reverse. in 1864, after the wilderness campaign and the overland campaign and the siege in richmond, the bodies were being brought up to washington for the hospitals and the cemeteries and the cemeteries were built and the bodies were stacking up and the smell, it was like a physical presen

at any rate, it was the bake shop case and he extolled the virtues of his favorite justice, oliver wendell holmes jr. it made it into the paper that he was praising holmes and his approach on the lochner case. he was denied the republican nomination. he then moved to the third party. this may sound somewhat familiar in today's political party, the progressive party. he formed the progressive party. he ran for that nomination, got it. and he ran as the third party candidate under a party that we call the bull moose party. it was actually the progressive party. it split the republican vote and allowed the progressive woodrow wilson to become president. that was lochner's first appearance on the stage. you would think at that point, he had been famous. was going to a famous thing from now on. but he actually went into obscurity, wasn't much talked about. there was a big debate about the role of courts however. justice holmes' opinion, the dissenting opinion made him one of the champions of the progressives. arguing for judicial restraint and arguing that the courts had no business interfering with t

belle, which was the -- when a young woman was sterilized against her will, and oliver wendell holmes wrote the notorious decision that said three generations of imbeciles is enough. that got me interested in holmes, and then i found a 1903 case, a giles v. harris, a voting rights case in alabama, where holmes was recently on the court and wrote another terrible -- wrote a decision justifying disenfranchising black people from voting rolls in alabama. and i said, okay, i have to write, i have to write about this. sometimes they're dead ends. i was going to write about buck v. bell, but a lot of peopled had done it. you read around, but finding giles v. harris, that sends me off in a different direction. you're attuned. you know, when you do this for a living, things click, and you go, ooh. there are supreme court decisions now, as soon as i -- this notion of corporations being people, for example, started in an 1886 supreme court decision, and it wasn't even in the decision. it was in an aside by the chief justice who said we believe 14th amendment guarantees apply to corporations. th

i mean, that's the famous oliver wendell holmes decision, clear and present danger to current law onedom of speech. and so weep, i think we need to make sure we have the proper balance. the flag certainly is a symbol, the confederate battle flag certainly a symbol of hatred, a symbol that creates fear in.americans. and i think you know, its place is in a museum, not on a state capital. i think it's very easy to set that distinction that it cannot be that flag cannot be flying on state or government property. >> perhaps it would be better to educate folks, as well. so stay with us. when we come back, white supremacists embracing at president's initial statement about charlottesville. we're going to break down why. that's next. wise man, i'm nervous about things i can't control... affecting my good credit score. i see you've planted an uncertainty tree. chop that thing down. the clarity you seek... lies within the creditwise app from capital one. creditwise helps you protect your credit. and it's completely free for everyone. it's free for everyone? do hawks use the stars to navigate?

>> you know if i had a time machine i think my first visit would be before all of earl -- oliver wendell holmes uttered those words and said stop. it's one reason sound bites don't work well in constitutional doctrine. everyone wants to restrict speech is just like screaming fire in a theater. holmes did not mean it is a sweeping justification but what you are really saying is the result of a court chipping away conceptions on the right of free speech. brandenburg is feel to met example of that. in 1969 the supreme court ruled in brandenburg versus ohio that you couldn't criminalize speech. it was an interesting decision where they actually struck down the ohio language which was incredibly broad but in striking it down they endorsed the idea that you can have violent speech for many of us we have a hard time accepting the concept of speech as violence in what you see in this tragic case is how words can actually be treated like a murder weapon and what that implies for us as a country what you had in this case which i think is abundantly obvious was in my view a crime of murder. you had two te

>> if i had a time machine i think my first visit would be before oliver wendell holmes before he utteredthose words and say stop. it's one of the reasons why soundbites don't work well in constitutional doctrine. anyone who wants to restrict speech says that just like screaming fire in a crowded theater. holmes did not meet him as a sweeping justification, but what you're really saying is a result of the court chipping away through exceptions on the right of free speech. brandenburg is the ultimate example of that. in 1969 the nine the supreme court ruled in brandenburg v. ohio that you could criminalize speech. it was a nursing decision because they struck down the ohio language, which it was incredibly broad. but in striking it down, they endorsed the idea that you can have violent speech. for many of us we had a hard time accepting the concept of speech as violent. and what you see in this tragic case is how words can be treated like a murder weapon. and what that implies for us as a country. what you had in this case, which i think was abundantly obvious, was not in my view a crime o

oliver wendell holmes said fdr with the second-class intellect and first-class temperament and emotionalelligence, self-control and keeping your demons under wraps and important for the presidential leadership and what the phone calls reflect and it was early in the administration, let's be clear, we have not seen another lead transcript, and i suspect that's a consequence of the fact that there is a certain degree of learning curve here. i mean, it's these conversations and the ones that are transcribed in the white house with four or five people in the room, taking notes and two or three people and maybe a dozen or so people have access i suspect to these, you can double that number, and look, as you know and juliette know, people leak for all kind of reasons. they want to feel important. they want to talk to the media and sometimes institutional rivalry, but it reflects finally, a real dysfunction in the white house. hopefully, hopefully, general kelly will at least attend to the system. he may not be able to fix the president's temperament. >> how much do these leaks hurt diplomatica

i mean, that's the famous oliver wendell holmes decision, clear and present danger to current law onreedom of speech. and so i think we need to make sure we have the proper balance. the flag certainly is a symbol, the confederate battle flag certainly a symbol of hatred, a symbol that creates fear in many americans. and i think you know, its place is in a museum, not on a state capital. i think it's very easy to set that distinction that it cannot be that flag cannot be flying on state or government property. >> perhaps it would be better to educate folks, as well. so stay with us. when we come back, white supremacists embracing the president's initial statement about charlottesville. we're going the break down why. that's next. who knew that phones would start doing everything? entertaining us, getting us back on track, and finding us dates. phones really have changed. so why hasn't the way we pay for them? introducing xfinity mobile. you only pay for data and can easily switch between pay per gig and unlimited. no one else lets you do that. see how much you can save. choose by the

seeing men dying so randomly as biers did in his battle and other soldiers are so much as oliver wendell holmes, jr., who gets disillusioned during the civil war as they're being severely wounded at antietam. he's fighting in the slice of the civil war that's much more in keeping with an older ideal of romantic warfare so custer himself never becomes disillusioned. . that's an important thing to remember that we first wandering the field at will as a staff officer then rising rapidly to brick gad command where he's in charge and then fighting battles that are more many keeping with this ideal he himself has his old romantic ideals that are reinforced so instead of being disillusioned he's more romantic and sentimental after the civil war so again the way the culture is beginning to change, he's going in the other direction which at first does not hurt him, it helps him. the other thing is that custer takes part in a very personal way in the great impact of the civil war on, of course, the great institution of -- when i say "great" i mean "massive" not good, in the massive institution of slavery

oliver wendell holmes, what makes him famous? give us a biography of him. not a veryhenck is famous person, but wendell holmes is one of the towering figures, prudent of american letters by the time the schenck case comes around. he is the grand old man of the supreme court, so he is a 19th-century guy. he was in the civil war and he has been in the supreme court for a long time. one of the remarkable things that happened in 1919, he was around for a long time and is still changing his mind and coming up with new ideas. much mr. schenck is so lost to history that we cannot find a photograph. we have to imagine what you look like in 1919. it all centers around the espionage act, which was passed in 1917. what did the espionage act do? thomas: the espionage act was a response to real concerns, the beginning of the red scare, at the beginning of world war i. there was going to be a real disruption in the united ability to mobilize the military. the espionage act is augmented by the -- act, which made it illegal to do things that might interfere with mobilizati

think about the foundations of first amendment law the name that frequently comes to mind is oliver wendel holmes, fire in a theater, clear and present danger, marketplace ideas. those were incredible phrases and the opinions they were in are incredible opinions, but in my view the opinion that most gets at the first amendment, what it means to this country, why this commitment is so important to our nation is this opinion in whitney versus california, because it is in this opinion where what justice brandeis does is really connects it to the deepest values of american civic life. he talks about how what the first amendment does, the purpose of the first amendment is ultimately to develop the faculties of citizens in order to participate in american democracy. the beauty of that commitment is mirrored and brought out by the beauty of his proceeds. i thought i would read some of it for you. i warn you it is going to go on for a few minutes because i'm going to read two-and-a-half long paragraphs. the best way to celebrate justice brandeis is to read justice brandeis, so here it is. "those who won

reminded me of a supreme court case, which when a young woman was sterilized against her will and oliver wendell holmes wrote a notorious decision that said three generations of imbeciles is enough. that got me interested in homes and then i went out back and then another case, 1903, voting rights case in alabama where homes recently on the court and wrote another parable-- rode a decision justifying disenfranchising black people from voting rolls in alabama and i said after-- i have to write about this. sometimes their dead ends. this offends me off in the other direction, so is that process. you are always looking and you are attuned, you know when you do this for a living things quick and you go there's a supreme court decision now and as soon as i-- this notion of corporations suing people for example started in 1886 supreme court decision and it wasn't even in the decision. it was a side by chief justice who said we believe 14th amendment guarantees the right of corporations after dudes-- disenfranchising african-american's. so i think i have to write about that, too. that's kind of how it works.

that was oliver wendell holmes jr. in that speech it made it into the headlines that he was praising holmes in his approach in the lochner case. so that made the case famous. he was denied the republican nomination and then moved to a third party. this may sound somewhat familiar in today's political climate. it was called the progressive party. he helped form a new third party called the progressive party and ran for that party's nomination, got it, and ran as a third party candidate under a party that we eventually nicknamed the progressive party. it split the vote and allowed woodrow wilson to become president. that was lochner's first appearance on the stage. in that point, it was famous and now finding to be a famous thing from now on, but it went into obscurity after that. it was not much talked about. there was a debate about the role of koushcourts, however, ae justice's opinion made him a champion of the progressives arguing for restraint against progressive legislation. arguing that the courts had no business