The Holmes Truth: Toward a Pragmatic, Holmes-Influenced Conceptualization of the Nature of Truth

Peirce coined the term “pragmatism,” but it was James, late in his life, who gave it definition and form as a discernable philosophical approach and who made it a topic of conversation within and without the scholarly community. In 1898, he delivered a lecture titled “the Pragmatic Method,” at the University of California, in which he outlined what would become his lasting, influential contribution to philosophy.

RICHARD J. BERNSTEIN, THE PRAGMATIC TURN 1-2 (2010).

The next step in the pragmatic method, then, is, in the presence of actual conflict regarding truth or a set of issues, to clear away any considerations that do not practically matter to the outcome. James explained that a pragmatic thinker “turns away from abstraction and insufficiency, from verbal solutions, from bad a priori reasons, from fixed principles, closed systems, and pretended absolutes and origins. He turns towards concreteness and adequacy, towards facts, towards action, and towards power.”

Id. at 31.

It is at this truth-evaluating stage of the method that James’s contribution to philosophy, and this article, most principally defined itself.

James characterized pragmatism as both a method and a theory of truth, and in many ways the two are inseparable because the method does not function without an explanation of James’s conceptualization of truth.

JOHN J. STUHR, 100 YEARS OF PRAGMATISM: WILLIAMS JAMES’S REVOLUTIONARY PHILOSOPHY 2 (2010).

Such a notion of truth has been criticized for its fluidity,

Josiah Royce, James’s colleague at Harvard, was a critic of James’s conceptualization of truth. Royce believed in a unity of truth that is shared by all. See JOSIAH ROYCE, THE RELIGIOUS ASPECT OF PHILOSOPHY: A CRITIQUE OF THE BASES OF CONDUCT AND OF FAITH 423-25 (1885). See also James Conant, The James/Royce Dispute and the Development of James’s “Solution,” in THE CAMBRIDGE COMPANION TO WILLIAM JAMES 187-88 (Ruth Anna Putnam, ed., 1997).

Such a perspective is substantially similar to Justice Holmes’s thesis in The Common Law in 1881 that “The life of the law has not been logic: it has been experience.”

OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881).

On a basic level, Holmes agreed with James regarding the subjective, personal nature of truth, and the role experience plays in determining how individuals understand the world around them. In a letter to a friend in 1912, seven years before he would introduce the marketplace metaphor in his dissent in Abrams v. United States,

250 U.S. 616 (1919).

Justice Holmes’s personal correspondences include many such references to the subjectivity of information individuals consider to be true.

Id. at 107, 115, 117, for example.

Scholars have suggested that Holmes entered the war an idealist, joining the Army during his final year at Harvard because of his abolitionist views. He left the battlefields skeptical of those who held rigid, absolutist views about the world around them.

Mark DeWolfe Howe, The Positivism of Mr. Justice Holmes, 64 HARV. L. REV. 529, 535 (1951); MENAND, supra note 12, at 38.

On a broader scale, the simmering tensions between North and South that ultimately resulted in the war instilled an understanding in Holmes that rigid, unmoving certainty about truth is likely to lead to violence.

MENAND, supra note 12, at 61-62.

Justice Holmes’s rejection of absolute positions, and his position that the best anyone can do is “bet” on what the truth is, extended to his judicial philosophy and interactions with other justices.

MENAND, supra note 12, at 62-65.

Unprecedented labor unrest in the 1890s and governmental concern regarding the spread of socialism during and after World War I placed Justice Holmes in a unique position to substantially shape the foundations of First Amendment jurisprudence during the heart of his career as a jurist.

Sheldon M. Novick, The Unrevised Holmes and Freedom of Expression, 1991 SUP. CT. REV. 303, 303 (1991).

Such cases clearly set the stage for the ten-year period, from 1919 to 1929, when Justice Holmes, at that point a veteran of the Supreme Court, added First Amendment considerations to the ideas he developed about protections for expression while on Massachusetts’s highest court. Before the well-known stream of sedition cases arose, starting with Schenck v. United States in 1919, the Court heard arguments in Baltzer v. United States in November 1918, just as the armistice ending World War I was being signed.

Baltzer v. United States, 248 U.S. 593 (1918). The decision cited here merely notes that there was an error in the government’s case, which led to the case being returned to the lower court.

The unpublished dissent in Baltzer represented the first time Justice Holmes explicitly incorporated First Amendment principles into what he had already been developing as an approach to freedom of expression that allowed the free exchange of ideas, as long as there was no real threat of injury to others.

See Commonwealth v. Perry, 155 Mass. 117 (Mass. 1891) (Holmes, J., dissenting); Vegelahn v. Guntner, 167 Mass. 92 (1896) (Holmes, J., dissenting); Plant v. Woods, 176 Mass. 492 (1900) (Holmes, C. J., dissenting).

Despite his apparently confident reasoning in the opinions, Justice Holmes was not at complete peace with the outcomes. In a letter to Harold Laski, then a Harvard professor and dear friend, a week after the Frohwerk and Debs decisions were announced, Holmes wrote “I greatly regretted having to write them – and (between ourselves) that the government pressed them to a hearing… . But on the only questions before us I could not doubt about the law.”

THE ESSENTIAL HOLMESsupra note 12, at 316.

Justice Holmes’s decision to join the Court and write its opinions upholding Espionage Act convictions that ultimately limited expression in three cases during the spring of 1919 caught the attention of leading thinkers, such as Laski, Zechariah Chafee, and Judge Learned Hand.

MENAND, supra note 12, at 427-29.

Abrams was waiting for the justices when they returned to work in the fall of 1919. Much as with the cases from the previous term, Jacob Abrams and others spread ideas that were critical of the war effort, this time in July 1918, not long before the war’s end.

Schenck v. United States, 250 U.S. 616, 620-23 (1919).

Justice Holmes did not understand his dissent to be a departure from his opinions in Schenck, Frohwerk, and Debs. He wrote in Abrams that the previous cases were “rightly decided.”

Abrams, 250 U.S. at 627-28 (Holmes, J., dissenting).

Unlike the incidents that led to the preceding cases, the conflicts that brought Benjamin Gitlow’s and Rosika Schwimmer’s cases to the Supreme Court occurred after World War I. Just more than a year after Jacob Abrams and his co-conspirators dumped anti-war leaflets out of New York City buildings, Benjamin Gitlow published his “Left Wing Manifesto.” Gitlow’s first court appearance in regard to his criminal anarchy charges in New York occurred just days after the Court announced its opinion in Abrams.

Thomas C. Mackey, “They are Positively Dangerous Men”: The Lost Court Documents of Benjamin Gitlow and James Larkin Before the New York City Magistrates ’ Court, 1919, 69 N.Y.U. L. Rev. 421,425 (1994).

Justice Holmes, nearing his ninetieth birthday, once again dissented four years later in Schwimmer, which revolved around a Hungarian immigrant’s contention that the requirement that she, in the process of becoming a United States citizen, agree to be willing to take up arms against enemies of her new country, was unconstitutional. Schwimmer was a pacifist, who contended that a willingness to fight in a war should not be a requirement for citizenship.

United States v. Schwimmer, 279 U.S. 644 (1929).

Justice Holmes continued the short dissent by accepting that Schwimmer’s views might cause unrest and encourage dissatisfaction with the government, but “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom of thought that we hate.”

Id.

Schwimmer represents Justice Holmes’s final statement regarding his understanding of freedom of expression and its necessary limits and protections. He left the Court three years later and died soon after, in 1935. Justice Holmes’s legal opinions and scholarly contributions can be encompassed by three ideas in relation to pragmatic philosophy and the nature of truth: (1) His judicial opinions and legal writings consistently communicated an understanding that truth is contingent upon experience. In this sense, his conclusion that the “life of the law has not been logic: it has been experience,” in the Common Law in 1881

HOLMES, supra note 49, at 1.

In Pennekamp, in 1946, the Court overturned a Florida Supreme Court decision to uphold contempt charges against editors at the Miami Herald. The charges stemmed from editorials the criticized Dade County judges’ decisions.

Pennekamp v. Florida, 328 U.S. 331, 349-350 (1946).

Justice Felix Frankfurter, a friend of Justice Holmes with a similar judicial philosophy, wrote a concurring opinion that criticized the Court’s use of the clear and present danger test in the case.

Luban, supra note 80, at 451; THE ESSENTIAL HOLMESsupra note 12, at 14.

Six years after Pennekamp, Justice Frankfurter wrote the Court’s opinion in a case that upheld an Illinois law criminalizing the expression of ideas that were disparaging toward certain racial or religious groups.

Beauharnais v. Illinois, 343 U.S. 250, 251 (1952).

Joseph Beauharnais, who was president of the White Circle League of America in Chicago, was convicted and fined $200 for violating state law

§ 224a of the Illinois Criminal Code, Ill. Rev. Stat., 1949, c. 38, Div. 1, § 471 provided:

It shall be unlawful for any person, firm or corporation to manufacture, sell, or offer for sale, advertise or publish, present or exhibit in any public place in this state any lithograph, moving picture, play, drama or sketch, which publication or exhibition portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which said publication or exhibition exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy or which is productive of breach of the peace or riots…

Challenging his conviction Beauharnais argued that the statute violated the liberty of speech and of the press guaranteed as against the States by the Due Process Clause of the Fourteenth Amendment, and was too vague to support a conviction for crime. Upholding the statute and the conviction, Justice Frankfurter, for the Court, explained that the law was created to limit racial and religious violence in a place with a long history of violent unrest.

Id. at 259.

Justice Black offered a vigorous dissent, contending that the law was both content-based and that it limited peaceful political speech.

Id. at 267-68 (Black, J., dissenting).

Both Pennekamp and Beauharnais were drawn into Justice William Brennan’s opinion for the Court in Sullivan in 1964. The case revolved around a full-page advertisement, titled “Heed Their Rising Voices,” which was published in the New York Times as a tool for gathering support, financial and otherwise, for the efforts of the civil rights movement. L.B. Sullivan, the Montgomery, Alabama, commissioner who oversaw the police and other services, contended that the advertisement, though it did not name him or his job title, defamed him because some of the information was incorrectly reported and reflected poorly on the work of those he supervised.

New York Times v. Sullivan, 376 U.S. 254, 257-58 (1964).

Justice Brennan, who wrote the Court’s opinion, rejected both Pennekamp and Beauharnais as guiding precedents in the case.

Id. at 268.

Justice Black wrote a concurring opinion to indicate that the majority did not go far enough in protecting freedom of expression. He explained that, “Unlike the Court, therefore, I vote to reverse exclusively on the ground that the Times… had an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials.”

Id. at 293 (Black, J., concurring).

Just more than a decade after Sullivan, a substantially remade Court struck down a Georgia law that criminalized the broadcast or publication of the name of a sexual-assault victim.

Id.

Justice White emphasized that Cohn’s claim did not revolve around any of the established privacy torts. Instead, it sought to penalize the conveyance of true information about a matter of public concern that was legally obtained from publicly available documents.

Id. at 489.

Justice Rehnquist again found himself on the dissenting side in the Hepps ruling in 1986. In the five-to-four decision, the Court concluded that a private person seeking damages in a defamation lawsuit must prove that the potentially damaging words were false, thus shifting the burden from the previous common-law understanding that the burden rested on the communicator to prove his or her message was true.

Id. at 776-77.

In the Court’s opinion, Justice Sandra Day O’Connor recognized that many expressions of comment cannot be definitively proven to be true or false, which would mean that the plaintiff’s burden of proving falsehood would at times allow untrue and harmful messages to damage the reputations of individuals.

Id. at 776-77.

Xavier Alvarez falsely claimed during a public meeting that he received the Congressional Medal of Honor and was charged with violating the Stolen Valor Act..

Id.

Justice Alito, in dissent, presented a substantially different interpretation of the law in question. He concluded the law “applies to only a narrow category of false representations of objective facts that can almost always be proved or disproved with near certainty.”

Id. at 2557 (Alito, J., dissenting).

The justices’ discourse in the cases examined consistently communicated an understanding that the possible truth or falsity of an idea or expression was a matter to be considered in relation to the value of free debate as a public good or contribution to democratic values. Such an understanding was substantially communicated in Sullivan, in which Justice Brennan identified the questions that surrounded the form of communication – an advertisement –

Advertising was not protected by the First Amendment in 1964. It would not receive such protection until the mid-1970s. See Bigelow v. Virginia, 421 U.S. 809 (1975) and Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976).

Similarly, in Beauharnais, Justice Frankfurter drew discussion of whether or not the ideas communicated by the plaintiff were made with “good motives” or could be regarded as “utterances as fair comment” into the opinion for the Court.

Beauharnais v. Illinois, 343 U.S. 250, 264-65 (1952).

The theme was communicated from a different perspective in Hepps and Alvarez, which dealt substantially with the extent to which false statements can contribute value to democratic discourse or the “public good.” Justice Kennedy, writing for the Court in Alvarez, contended that false speech could, in some instances, be a public good.

United States v. Alvarez, 132 S. Ct. 2537, 2553 (2012).

In the cases examined, it is clear that the justices consistently conceptualized knowledge of truth or falsity as something that was contingent upon the reception of further information. In this sense, issues of truth and falsity were understood as being, at the same time, static and dynamic. Truth could be static to the extent that the justices understood a matter to be universal reliable and not open to challenge. At the same time, however, the Court clearly recognized that new knowledge, if attainable, could transform truth to untruth, untruth to truth, or a provisional truth or falsity to something more concrete. Such a challenging, contingent dynamic between fully accepting truths or falsities as being absolute and leaving room for them to be reassessed was a central ingredient within the conflicting understandings communicated in the narratives regarding the nature of truth. The theme in this regard was most substantially represented in Pennekamp, in which justices continuously accepted “the truth” that was available as concrete, while recognizing that the “whole” or “full” truth might not yet be known. The Court accepted “the facts stated in the editorials were correct,”

Pennekamp v. Florida, 328 U.S. 331, 340 (1946).

The Court’s rulings in the defamation cases, Sullivan and Hepps, conveyed a similar understanding of truth and falsity as being provisional and contingent upon receipt of further information. In Sullivan, the actual malice standard at the heart of the precedent pivots upon an assumption that an inquiry must be made into whether the information was true or false and whether or not the communicator cared or was aware of the message’s truth or falsity.

New York Times v. Sullivan, 376 U.S. 254, 279-80 (1964).

Similarly, in Hepps, the Court repeatedly concluded that expressions must be “proven” or “shown” to be true or false, thus communicating the understanding that a decision on truth or falsity was contingent on more information.

Philadelphia Newspapers v. Hepps, 475 U.S. 767, 776 (1986).

Finally, in Alvarez, justices articulated an understanding of truth and falsity as being divisible into two groups: statements of fact and more abstract statements dealing with intangible ideas, such as “philosophy, religion, history, the social sciences, the arts and the like.”

United States v. Alvarez, 132 S. Ct. 2537, 2552 (Breyer, J., concurring).

The set of cases examined above most consistently communicated an understanding by the justices that the production of what is regarded as truth is a social process and an important component of the way in which knowledge can be generated in a democratic society. The conclusion then has to be that more speech, rather than less, would be the best way to ensure that such a process can flourish.

Such a conclusion aligns significantly with Justice Louis Brandeis’s contention in his concurring opinion in Whitney v. California, 274 U.S. 357, 377 (1927) that “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

The conceptualization of truth formation as a societal process that requires substantial freedom for the communication of ideas was discussed in the Sullivan and Beauharnais cases in terms of the harm such speech might realize. In his dissent in Beauharnais, Justice Douglas allowed that debate on important issues could at times become emotional and destructive. He concluded, however, that the authors of the Bill of Rights were aware of the dangers in ideas, and when faced with a question of more speech or control of speech, “they chose liberty.”

Beauharnais v. Illinois, 343 U.S. 250, 287 (1952) (Douglas, J., dissenting).

Finally, in Alvarez and Hepps, the justices recognized that despite the value of encouraging the processes of truth and knowledge formation, it is sometimes the case that speech which is not true must be protected. Justice Kennedy, in the Court’s opinion in Alvarez, posited that the Stolen Valor Act risked suppressing “all false statements on this one subject in almost limitless times and settings.”

United States v. Alvarez, 132 S. Ct. 2537, 2547 (2012).