FREEDOM OF SPEECH fi re in a theater, or using speech to “create a clear and present danger” of “substantive evils” Congress had the power to prevent. As articulated by Holmes in Schenck , where the tendency of the words would be to create the danger, and the intent to create the danger was present (constructively inferred from the words used), the speaker could be criminally punished even if the speech failed to produce any of the action advocated. 17 Holmes Brandeis A First Amendment jurisprudence would emerge that, despite some later regressions, would provide protec-tion for speech critical of government and policy not previously known in human history. Holmes would author another important early 1919 opinion affi rming conviction for critical speech, this time under the Sedition Act of 1918, which had broadened the scope of Section 3 of the Espionage Act. 18 And this time the defendant was the prominent social-ist presidential candidate, Eugene Debs, who had given a speech criticizing the war and praising those who had been convicted for advising resistance to the draft. 19 Despite the lack of evidence that Debs’s speech infl uenced anyone to resist the draft, Holmes wrote that “the natural tendency and reasonably probable effect” of the speech was to interfere with recruitment, and thus Debs could be convicted because he had “specifi c intent”, as manifested in the words he used, to cause that effect. 20 A Revolutionary Spark that Kindled a Flame The Supreme Court’s term ended in June of 1919, and Holmes departed for his summer home. Throughout the summer, he faced subtle, and in some cases substantial, criticism for his Espionage Act decisions from Learned Hand 21 , Harold Laski 22 , Zechariah Chafee Jr. 23 , and Ernst Freund. 24 Holmes sought to defend 22 VIRGINIA LAWYER | August 2019 | Vol. 68 | CRIMINAL LAW SECTION his decisions, but particularly at Laski’s urg-ing, would read widely on freedom of speech issues during the summer recess. 25 When he returned for the next term of Court, he would author the most famous and infl uential First Amendment dissent in American history, 26 arguing that the convictions of Russian anar-chists and socialists for violation of the 1918 Sedition Act through their critical speech violated the Freedom of Speech clause of the First Amendment. The defendants in Abrams had pub-lished leafl ets criticizing America for sending troops to Russia in response to the Bolshevik Revolution and calling for a general strike to prevent production of war materiel to be used against Russia. At one level, Holmes’ dissent was based on the straightforward legal proposition that the defendants’ specifi c intent was clearly not to interfere with the war against Germany, and thus they lacked the requisite intent to violate the Act. But that narrow analysis was only a small part of what was going on in the dissent. Holmes now repeatedly used adjectives like “imminent” and “immediate” to modify “danger” so as to insulate speech from criminal liability except when the link between the speech and an un-lawful dangerous act was very close. Holmes’ analysis undercut the fi ctional “tendency” logic that the majority had brought forward from Holmes’ own Schenck decision. Holmes also now found a requirement for “specifi c intent” to bring about the immediate danger, as opposed to a constructive intent deprived from the words themselves, which Holmes had likewise applied in Schenck . Most importantly, after referring to “the right of free speech” and the “right to change the mind of the country,” Holmes launched into a poetic narrative that began with a liter-ary and history-shifting “but,” and ended with an apology for not having “more impressive words” to communicate constitutional dis-dain for the convictions. Situated between the “but” and the unnecessary apology was an im-pressive defense of free speech. Holmes now postulated that history had repeatedly un-masked the falsity of many orthodox “fi ghting faiths”; that the “ultimate good” for society could be reached only by the “free trade in ideas”; that protecting the marketplace of ideas was the “theory of our Constitution”;” and that the First Amendment repudiated both the common law of seditious libel and the 1798 Sedition Act. 27 Holmes in less than www.vsb.org Photos Alamy.com