Early 20th-century US. Supreme Court Justice Oliver Wendell Holmes Jr. wrote, “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought 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.”
Holmes was responsible for a doctrine used by our nation’s high court to restrict First Amendment claims to free assembly, speech, or press, known widely through one line of his opinion, “clear and present danger.” Later, an important lower court jurist, Learned Hand, supported the notion, adding that restrictions on these American freedoms could only come to prevent “imminent lawless action.”
It was a different time. Socialism, especially the Union of Soviet Socialist Republics and the National Socialist German Workers’ Party, i.e., the Nazis, was then known to be a verified threat to freedom. Still, jurists were slow to restrict the exchange of ideas, even vastly unpopular ones. The minority voice had to be protected, if only so a debate could be preserved.
How often did the majority prove, in the long run, to be on the enlightened path? Is it any different now?