Justice Oliver Wendell Holmes Jr and the “Instinctive Weapon of the Vested Interest”

 By Mirjana Unikowski

Photo by Markus Winkler on Unsplash

Almost exactly 80 years ago, Robert Menzies declared freedom of expression to be one of Australia’s ‘foundational’ freedoms. In a radio address made during the grim early months of 1942, Menzies described this freedom as gravely at risk: “Suppression of attack which is based upon suppression of really free thought”, he stated, “is the instinctive weapon of the vested interest.”

There exists a contradiction within the issue of free speech in Australia. Over the last near-century since Menzies’ time, a lot has changed regarding our perceived rights to freedom of expression. However, in many other ways, it has continued to be one of the more contentious political issues faced by each successive generation. Legislation, in particular, remains dynamic regarding this issue.

There are few politically engaged Australians who are unfamiliar with the First Amendment to the United States Constitution. For those who are, it can be summarised thus: the right to debate publicly, uninhibitedly, in a way that “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials”.¹

In Australia, by contrast, freedom of speech does not enjoy any equivalent constitutional protection. Unlike most Western democracies, we have neither constitutional recognition, nor a bill of rights-esque enshrinement of the protection of this freedom that was described as “foundational”.

Today, ‘freedom of speech’ has become the rallying cry for those who feel that their opinions are unfairly vilified, equally depended upon by both sides of the political spectrum. With no clear law protecting this right, it is difficult to imagine how this can be settled through our own precedents. Therefore, it may be necessary to examine and consider the jurisprudence of other jurisdictions. One such example may be found in the remarkable events of 1919. 

Justice Oliver Wendell Holmes Jr. (1841-1935), once a strict conservative republican turned civil libertarian, marked his allegiance to the cause of protecting the First Amendment rights even in the face of perceived Communist insurgencies. Holmes’ dissent gives us an idea for how we can institute common law reform in Australia regarding the freedom of speech, and where Australia’s laws on this ‘right’ may proceed in the future.

Shouting ‘Fire’ in a Crowded Theatre

Justice Holmes was not exactly renowned for his political liberalism. Serving on the Massachusetts Supreme Court for over 20 years, Holmes helped to define the state’s libel and slander laws – specifically, that criminal sanctions should be upheld against those protesting the draft for the First World War.² In the 1919 case Schenck v United States, Holmes stated what would lay the foundation for the key limitation placed on the First Amendment: the clear and present danger test. Memorably, Holmes declared to the Court that “free speech should not protect a man falsely shouting fire in a theatre and causing a panic”.³ In other words, freedom of speech is permissible only when it does not constitute or create any immediate danger, or is made with any evil intent.

Later that year, however, Holmes’ opinion on free speech had gone from siding with the majority to dissenting altogether. In his opposition to the Supreme Court decision in Abrams v United States (1919), Holmes argued against the restrictive nature of the clear and present danger test. He instead promoted “a free trade in ideas”, even in dangerous ideas that we may “loathe and believe to be fraught with death”.⁴

The context of this dissent is lined to a general rise in political criticism in the United States. The Espionage Act of 1917, for instance, was passed to stifle political opposition to the country’s involvement in the First World War. Abrams v United States sought to determine whether immigrants distributing leaflets condemning the US intervention into the Russian Revolution was a criminal offence, by both encouraging disloyalty to the United States and hindering its war efforts. 

Here, the majority used Holmes’ former clear and present danger test to condemn the five Russian immigrants on trial. The judges ruled that the effect of distributing the leaflets would “defeat the war plans of the Government”, through the “paralysis of a general strike”.⁵

By this point in time, Holmes had built upon his understanding of the First Amendment’s stipulations. Though he still believed in the primacy of national security, Holmes’ newly formed belief in the “free trade of ideas” had come to somewhat curtail this. Holmes argued that this market for ideas was only of worthwhile value if debate and discussion were not only decriminalised, but also encouraged as part of a functioning democracy. In essence, Holmes’ argument was summarised by his dissenting appendage to Abrams:

“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 for the thought that we hate”.⁶

Despite the acceptance of Holmes’ dissent by a majority of civil libertarians for generations to come, this is far from a settled debate in the United States. The Red Scare and McCarthyism were only two situations that immediately preceded the Abrams case, despite free trade in ideas and clear and present danger expressions becoming customary law from around the 1960s onwards.

Even in our day and age, the legacy of Holmes’ dissent remains complicated. The Black Lives Matter movement has been condemned for spreading hate speech against the police. NFL players who chose to kneel in protest during the national anthem have faced disciplinary action from the league. Simultaneously, support for freedom of speech has often become synonymous with supporting rights to harass, intimidate, and discriminate. It has certainly proven true that those with the most to lose regarding a legislated right to freedom of speech typically belong to already vulnerable minorities. 

Freedom of speech in Australia

Closer to home, similar challenges have been faced by both defenders and critics of free speech. One of the earliest incursions of the Australian legal system into the issue of free speech was following the Second World War. Legislation outlawing a Communist Party in Australia was passed in 1950, though it was later ruled unlawful by the High Court.⁷ Without a constitutional basis upon which to set the parameters of debate, the courts did not tackle this topic in a significant way until 1992. In the High Court case of Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth (ACTV), it was determined that there was an implied constitutional right to a freedom of speech, in particular, concerning political, governmental, and public affairs.⁸

This implied right was restricted five years later in the case of Lange v Australian Broadcasting Corporation. Arising out of a defamation action brought by a former Prime Minister of New Zealand against the ABC, the Court stated in a unanimous decision that the freedom to political expression does not “constitute a personal right in the conventional sense of human rights”.⁹ As well as precluding individuals, the Lange case ensured that freedom of speech was considered implied within the Australian Constitution so long as it did not impede on the “effective operation of that system of representative and responsible government provided for by the Constitution”.¹⁰

The ambiguity of this rationale has created a complex legacy in Australia. For example, there have been ongoing debates surrounding section 18C of the Racial Discrimination Act, legislated to criminalise acts considered reasonably likely to “offend, insult, humiliate, or intimidate”, which has deep implications for concepts of free speech.¹¹ A memorable freedom of speech case that reached the High Court was last year’s decision of Comcare v Banerji. It was ruled that the termination of a public servant’s employment for speaking out against the government on a private and anonymous Twitter server did not contravene this previously established ‘implied’ right to political expression.¹² As another testament to the confusion, in September 2020, more than half of Australia’s leading environmental scientists working for the government submitted a report claiming that they had been “prohibited from communicating scientific information” to the general public. Research relating to climate change, the extinction of animal species and pollution was alleged to be actively suppressed by the Federal government.

Australia does have obligations as a party to several international treaties regarding the right to freedom of opinion and expression (such as the International Convention on Civil and Political Rights, and the Convention on the Elimination of All Forms of Racial Discrimination). Nevertheless, the penalty for non-compliance is at worst international condemnation. Australia’s lack of action regarding international responses to our refugee laws is but one example of our current government’s unwillingness to take international condemnation into serious account.

Exporting First Amendment jurisprudence to Australia?

Thus, we seem to be walking a perilous path between free-speech absolutism and suppression. In a “post-truth”, “fake news” era, it is difficult to know whose example to follow concerning these polemical freedoms, both on a political and a social level. Whilst it is commonly accepted that free speech can injure individuals (mentally, socially, economically), the limitation of speech made purportedly in the “public interest” is similarly dangerous.

That the government can make rulings on such a contentious issue in which the common law has no stance appears to make the situation quite desperate. Thus, it perhaps requires a return to the 100-year-old dissent of Holmes to come to establish some kind of middle ground. The government is meant to be a government of its people. It is the people, not the government, who must decide which ideas have value, and which should be upheld.

In his dissent in Abrams, Holmes declared that “the best test of truth is the power of the thought itself 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.”¹³ Imagined in less economic terms, Holmes was essentially arguing in favour of debate, of disagreements, in order to achieve the ultimate value that freedom of expression can hold for society and for individuals. Perhaps, as Holmes suggests, the only way to really deal with hateful ideas is to give them the freedom to be aired, and to institute an equal freedom then to publicly and openly challenge these ideas. This is how societies grow and change. This is how democracies are maintained.

Though the laws do not look likely to change any time soon, it is well overdue that Australia settled, either in the form of some kind of bill of rights, a constitutional amendment of our own, or even just ordinary legislation enshrining the freedom of speech into our legal system, as Holmes did in the United States 100 years ago.

1. Brandenburg v Ohio (1969) 395 US 444.
2. Sheldon Novic, Honourable Justice: The Life of Oliver Wendell Holmes (Little, Brown and Company) 1989, 26.
3. Schenck v United States (1919) 249 US 47.
4. Abrams v United States (1919) 250 US 616.
5. Ibid.
6. Ibid.
7. Australian Communist Party v Commonwealth (1951) 83 CLR 1.
8. Nationwide News Pty Ltd v Wills and Australian Capital Television Pty Ltd v Commonwealth (1992) HCA 5.
9. Lange v Australian Broadcast Corporation (1997) HCA 25.
10. Ibid.
11. Racial Discrimination Act 1975 (Cth), s18(c).
12. Comcare v Banerji (2019) HCA 23.
13. Abrams v United States.