Also in 1919, the Court upheld the conviction of Jacob Abrams and five other men for distributing pamphlets critical of American intervention in Russia after the Bolshevik revolution. This time, however, Holmes and Louis Brandeis dissented, marking the emergence of a court minority committed to a broader defense of free speech. Six years after Abrams, the two again dissented when the majority upheld the conviction of Benjamin Gitlow, a communist whose Left-wing Manifesto calling for revolution led to his conviction under a New York law prohibiting “criminal anarchy.” “The only meaning of free speech,” Holmes now declared, was that advocates of every set of beliefs, even “proletarian dictatorship,” should have the right to convert the pubhc to their views in the great “marketplace of ideas” (an apt metaphor for a consumer society). In approving Gitlow’s conviction, the Court majority observed that the Fourteenth Amendment obligated the states to refrain from unreasonable restraints on freedom of speech and the press. The comment marked a major step in the long process by which the Bill of Rights was transformed from an ineffective statement of principle into a significant protection of Americans’ freedoms.

The tide of civil-liberties decision making slowly began to turn. By the end of the 1920s, the Supreme Court had voided a Kansas law that made it a crime to advocate unlawful acts to change the political or economic system, and one from Minnesota authorizing censorship of the press. The new regard for free speech went beyond political expression. In 1930, the Court threw out the conviction of Mary Ware Dennett for sending a sex-education pamphlet, The Sex Side of Life, through the mails. Three years later, a federal court overturned the Customs Service’s ban on James Joyce’s novel Ulysses, a turning point in the battle against the censorship of works of literature.

Meanwhile, Brandeis was crafting an intellectual defense of civil liberties on grounds somewhat different from Holmes’s model of a competitive market in ideas. In 1927, the Court upheld the conviction of the prominent California socialist and women’s rights activist Anita Whitney for attending a convention of the Communist Labor Party where speakers advocated violent revolution. Brandeis voted with the majority on technical grounds. But he issued a powerful defense of freedom of speech as essential to active citizenship in a democracy: “Those who won our independence believed ... that freedom to think as you will and to speak as you think are indispensable to the discovery and spread of political truth.... The great est menace to freedom is an inert people.” A month after the decision, the governor of California pardoned Whitney, terming freedom of speech the “indispensable birthright of every free American.” The intrepid Mrs. Whitney was soon back in court for violating a California law making it a crime to display a red flag. In 1931, the Supreme Court overturned the law as “repugnant to the guaranty of liberty contained in the Fourteenth Amendment.” A judicial defense of civil liberties was slowly being born.

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