ABSTRACT
Historians have maintained that Justice Oliver Wendell Holmes, Jr., formulated a libertarian test for free speech in Schenck v. United States, decided by the Supreme Court on March 3, 1919. Holmes’ private correspondence, moreover, strongly indicates that he had not become a defender of civil liberties in the interval between Patterson and Schenck. As for the tendency of the “silly leaflet” published by an “unknown man,” Holmes charged that nobody could seriously believe it would hinder the government’s war effort. Taking this stand, Holmes repudiated the doctrine of “indirect and probable” causation, asserting that to be guilty of resistance meant forcibly to oppose “some proceeding of the United States in pursuance of the war.” Holmes repudiated his earlier position that the First Amendment left the common law of seditious libel in force. With this dissent and his plea for toleration, Holmes began constructing the “clear and present danger” formula to protect civil liberties.
