In 2024, I found myself unexpectedly writing a book on free speech on campus. If you had asked me prior to this year, I would have never imagined such a project coming to fruition.
Life, however, is full of surprises. The on-campus controversies of 2024, stemming from protests related to events in Israel and Palestine, inspired me to compose an extended reflection on my travel laptop—and here we are.
Although not included in the book, there is an issue that has been weighing heavily on me in recent months. When considering freedom of speech on campus, it becomes clear that we could benefit from a guiding principle. Two of the most influential First Amendment opinions come from Justices Louis Brandeis and Oliver Wendell Holmes, both offering contrasting perspectives.
Brandeis’ viewpoint is lofty and poetic. In Whitney v. California (1927), he eloquently stated, “They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.” Brandeis emphasized the importance of free speech and assembly as fundamental principles of American government.
He argued that public discussion is essential for protecting against harmful ideologies and that citizens have a duty to engage in political discourse.
Brandeis valued freedom from government control, advocating for open dialogue as a defense against dangerous ideas. However, he also stressed the importance of active participation in civic affairs.
On the other hand, Holmes’ dissent in Abrams v. United States (1919) took a darker and more cynical tone. He acknowledged the temptation of censorship, noting that those in power often seek to suppress opposing viewpoints to achieve their desired outcomes.
However, Holmes ultimately argued for humility and the value of free exchange of ideas in determining truth. He believed that the marketplace of ideas was the best mechanism for discovering truth and that censorship should only be used in extreme circumstances.
While both Brandeis and Holmes championed free speech, their underlying philosophies diverged significantly. Brandeis focused on democratic engagement, while Holmes emphasized the pragmatism of open discourse.
Neither justice adhered to originalism in their interpretations of the First Amendment, viewing free speech as a timeless and broad commitment.
How does this debate apply to free speech on campus? As the saying goes, general principles do not always dictate specific cases.
Those influenced by Brandeis would likely encourage student engagement and discourse as essential components of democracy. Conversely, followers of Holmes would prioritize the unrestricted exchange of ideas as a means to achieving societal progress.
While I appreciate Holmes’ perspective, I find myself drawn to Brandeis’ more optimistic and participatory view of free speech. In the current landscape of colleges and universities, a balanced approach that incorporates elements of both justices’ ideologies may be most beneficial.
Ultimately, in 2024, institutions of higher education may find Holmes’ pragmatic approach to free speech to be the most relevant and effective.
