Good afternoon. Congratulations it is a big event to publish a book it is a big deal so congratulations. I really love to read this said i thought we would talk about what drew you to the project about Oliver Wendell holmes and the implication for First Amendment issues today then we will throw out there but i was hoping to begin you could read one page from the book, page member for this is actually not thomass writings but it helps to capture very well what he was struggling with what is so great about this book. This is from holmes dissenting opinion in the 1919 case abrams vs. United states. The first case that holmes defends the importance of free speech and that is a turning point in our history of the First Amendment. Incredibly powerful dissent especially the last paragraph that he tries to explain in a philosophical way why it is important why we have a freespeech in did begins in the strange and income grew way as if he makes the case against freespeech, not for its. Persecution of expression of opinion seems to be perfectly logical. If you have no doubt of your power and want a certain result was all your heart you naturally express your wishes to sweep away all opposition. To allow opposition by speech seems to indicate as when a man says he has wear this circle where you do not care for the results or doubt easy your power or your premises. At this point holmes shifts direction very suddenly and very brilliantly in my mind. But when men have realized time has upset many they come to believe even more the very foundation of their own conduct that their desire is better reached by free trade in ideas the thought to get itself accepted in the market and mattress is the only ground upon which the wishes could safely be carried out that is the theory of the constitution an experiment as all life is an experiment every year we have to wager our salvation on some prophesy based upon imperfect knowledge. While that experiment is part of the system we should be internally vigilant to check the expression of opinion that we lowes that we thought was death unless they so imminently threatened in the interference with the pressing purpose of the law that the immediate check is required to save the country. We will talk about the First Amendment but that is about a lot more a way of thinking about our democracy but before that lets hear about your book you are a former journalist. So i could understand why you reedy interested in the of First Amendment. Not just selfinterest. This dissent really represents a turning point of the nations understanding of the First Amendment and the homes is life it is the beginning of a larger transportation prior to an 1919 freespeech was the empty slogan the unfilled promise. So the history the protection of free speech begins 1919 with a series of cases dealing with the espionage and sedition act passed during world war i where many socialists were convicted. The court hears of a number of cases and that upholds the conviction and an holmes himself writes the opinions then he turns around eight months later with the dissent in First Amendment professors teach the First Amendment they begin with the case is of holmes initially appalled these convictions than 78 months later are writing this very powerful dissent. When i was a student this is how i teach my students there has always been a nagging question for me why is a different for holmes eight months later . We tend to gloss over as if the facts of the case were different but that did not sit well with me and i thought there must be something more to it. I was hoping to write a story that was more than the academic analysis i thought how it was with the history it was an effective story that involves much more than abstract ideas but involved so i got drawn into it. Host talk to us about the process of researching and writing. How did you enter this question . Was there sources you thought were reviewing or people that you talk to . There maybe a few more questions you want to answer . How did you engage that topic . I started to do preliminary Research Reading all the biographies biographies, published letters coming he was a prolific correspondent although he instructed most of the people he worked with to burn the letters, thankfully most of them did not so i started to read those letters. All of which then when i started to make a timeline of holmess life during this period of time from the middle of 1918 and tell some time in 1920 with said time log of everything in his life the letters he was writing, the books that he read he kept a list of every book that he read every book in his 30s on. He read a ton was just the titles he would read in the summer 4450 or 60 books so i started to read the books i scoured newspapers i looked at his friends think created a two year tie line. In thinking about what is going on his life call all these pieces fit together that is when i began to understand why he changed his mind. There is not a smoking gun or one moment to say that is when he changed the it is a gradual process the you have to see it in Chronological Order and that was missing prior to the book some scholars will delve into this but in my mind it was not clear how this fits together then for me was where the real revelation came. As a historian it is a wonderful book. But i dont think most historians would have approached it to that way. You approach it as a journalist. And as a storyteller. I tried to give myself the advice that i dont want to tell the reader why holmes changes mind that show him. There are very few times in the narrative where i interject commentary or analysis. Sometimes i have to but i tried to let the events speak for themselves and i hope they do and i hope the reader understands everything i would had told the reader if i said here is why. I have written an article for academics because that is what theyre used to but i dont think doing it that way gives a rich sense of what is going on and it is just not as fun to do it that way. But lets talk about holmes a little bit. You with knowledge he has gotten a fair amount of attention but he is still a fascinating person. Give us a sense of someone who he immersed himself how would you describe him as having . Just some biographical details he fights and the civil war, the union side of course. He comes from an old boston family his father is more famous than the sun for a longtime. Well known as a writer in medical professor and coined the term boston brahmin he fights in the civil war in his wounded three times twice he nearly dies and throws himself into law after the war in becomes a judge in massachusetts then is appointed to the Supreme Court. My book takes place at the latter stage of his career he is already 77 and he has an eye reputation at this time. He is not the looming figure that he is today but generally regarded the greatest judge of American History but you can say thats and back it up reasonably. That is not the case when it starts he was a very philosophical and cerebral person so people were skeptical is seem too cerebral or too smart for his own good one critic described him as a literary fellow that cared too much the way he phrased things and not as solid as he should be. But to a growing group of young progressive stand intellectuals he is the aspiring romantic figure because he does have a philosophical and poetic quality of you have given these moving speeches having fought in the war and having point these terrific phrases in these opinions are some more interesting to read a and the other justices of the Supreme Court. For the young men in the books that influence him he is like a philosopher poet in the world of government and a lot. That is his strength theft he breaks out of the law and is more than just a judge. The only judge in American History is a folk hero. I think his great contribution is the persona that he created and that is the real strength. The weakness is he did not always think through his safety is as fully as he might have. He became a little sloppy. This relies upon giving is that he has said so when you read things that he writes sometimes it doesnt always add up internally coherent or consistent. That is one of the fun things that there are all these contradictions of a complex character which if you wanted character in a book, that is what you want with fellow Justice Brandeis the rights and other eloquent opinion about freespeech but brandeis does not have as many contradictions it is pretty clear why he believes in free speech so it is less interesting it does not give away for our own mixed feelings. There are a lot of young people that tried to influence with there are so many i dont thank you can cover them all but picked a couple that you think are interesting. These are young men and intellectuals, lawyers, most ly progressives quite a few are jewish which is interesting because holmes comes from a boston family. They are young one of the most influential as an individual who most people today who dont remember all those some may have heard of him. 24 years old and extractor at harvard incredibly liberal. Just to the rights of marxian later is the leader of the labor party in a world war ii in england. Holmes views him almost as a son. He had no children. The two of them headed off even though they were so diametrically opposed age, religion, political belief. Holmes really admired him as an incredibly brilliant young man with his personality and he has an incredible influence. Felix frankfurter is another individual. A Young Harvard law professor later sitting on the Supreme Court as holmes seek to and has an important influence of reporters of the new republic magazine at that time literally was a new 1914 was the new republic. They were close to holmes he generally did not read the newspapers are read the new republic. As these men gathered or congregated around the house in washington d. C. In Dupont Circle they called it that serving as a salon where they would gather him and talk about the courage to events of the day of Current Events of philosophy and holmes woodstock then after hearing the court to have drinks or play solitaire. These men really worshiped holmes dan the fact that he gave them attention was remarkable. What he got out of it was they were starting to give him the recognition he felt he deserved it helped him to recapture the excitement of his views. And he was younger a part of the metaphysical club. And all the young thinkers in boston. This is a way to recapture that elevator stages of his life. One of his famous quotes footpath. The life of the law is not logic it has been experience. The lot going on in 1918 that in addition to these people is influencing what theyre interacting maybe we could talk about the summer of 1980 and how it shaped what he was thinking . Guest the red summer the beginning of the first red scare coming out of the war. Depression speech during the war cover nearly 2,000 indictments were brought under the espionage and sedition act against people who criticized the war in and a lot of these carr mainstream people. The leader of the socialist party received 6 percent of the popular vote when he ran in 1912 6 for a thirdparty candidate is a lot. Theyre not fringe people and went to jail tenures for being critical of the war so we had just come out of that experience. Said now we enter a period of hysteria. The Russian Revolution has taken place and communism is spreading and tear communism will spread through the United States team and all of this persecution of german sympathizers now transferred to anyone who may have been a communist sympathies. To of homes as friends get caught up in the witch hunt. One of the implicit thesis of the book is to watch his own friend come under attack for their views to help to leave holmes to this configuration that the abstract ideas of free speech for him becomes very real and personal. So the famous line about the life of the law has not been logic but experiencing and he wrote that years before but in a way this story is an illustration. Talking about the logic of persecution. As a result of experience we learn better when space realizes why . And because of his experience and. Host cliff to talk of the supreme cory court is that people or the justices did not even have offices in their work from home. A lot of things are different bet. Guest to highlight a couple . That was a fun aspect to seek how Different Things were. The Supreme Court did not have the current buildings that was constructed in the 30s. , the niche in the Old Senate Chamber in the capital. They had a Conference Room and downstairs from the of senate barber shop a musty cigar filled room where they would discuss the cases for law clerks like now each of the secretary but they did not all hire one. And usually a young law graduate but did redial tasks. They did not write the opinions, they are much shorter which is nice you could read the opinion in about 10 or 15 minutes and comprehended as opposed to the 200 pages that the issue now. One thing that was very interesting was how much more casual the interaction between the justices and other people or how willing the justices seem to be to talk with friends and acquaintances about the issues. Holmes letters are filled with discussion about cases before the court but i dont think he ever gives anything away ahead of a decision but he talks about the personalities on the court and people engage do with these discussions. There is a scene in the book were there is a meeting arranged between homes in the young First Amendment scholar who has written an article criticizing the courts decision and freespeech issues. So he gets them together to talk about free speech to change holmes mind this makes Antonin Scalia of going duck hunting with dick cheney pale by comparison but to actually set up a meeting to change the mind of the Supreme Court justice outside the formal argument process is quite striking. Host last question before the audience. As a former journalist thinking about the First Amendment i have to ask you about your thoughts of these issues and what we struggle with today of internet privacy, the nsa, a counterterrorism, the debates over wikileaks there are so many issues give me your thoughts into minutes for i hesitate to ask you what would he think but what you have learned. The issues in their specifics are very different today they were then. Classified documents that government employs could be prosecuted two weeks those but the larger theme or the larger question of the balance between National Security is very similar. To the time period people have very scared and giving government a relatively free hand to do what it wants then sometimes government oversteps with the implications of that. You can draw lessons about the issues today but when you look back you realize how easy it is to overstate the dangers and how frequently we do that. It is common for the court to say they were hysterical but now the threat is real so even if they did overreact and then but maybe not now also to realize when these issues become personal not the fringes of society that people that you know, it becomes more personal. Host i am sure many people have questions. The key is so much for that talk. Very intellectual and very smart. I like that. Part of what you were talking about with Oliver Wendell holmes mentally above that all the people did not like that was that the barrier to freedom of speech across the world . We go like this dictator because they can be above it all. That we cannot talk so well is that the Great Barrier back then to freedom of speech . The detachments and the difficulty breaking through to people . I suppose that it could be it seems that your question it gets that should we be engaged with with more aggressive diplomacy instead of force but also could be taken to ask what it takes to of grants free speech to become personal that is the case with a lot of legal issues. They are people but their relatives the removed from the concerns they can understand the personal consequences of legal questions they will be more informed and weigh more accurate. With that detests meant to have your head in the cloud is certain they a barrier. You mentioned today you mentioned the civil war experience how it affects the way he looks at the world. The paragraph is a fairly harsh view of the world. Because to be a part of democracy but the better results will come out. Absolutely. It is okay to scream at one another but to kill . We ultimately realized that we have to drop competing viewpoints the only way we could be ensured to Going Forward with a harsh view what is that but to disagree to kill the other fellow . Colas was about 78 when he wrote the opinion that was anything to factor it in and his advanced age in 1918 that is todays 90. Fifth would you comment about this . Which i think is different of time on the court. If youre asking if holmes was becoming soft in the head he was very sharp. If what you are asking is whether if you are approaching mortality one or open to relationships as possible these eight young friends gave him a lease on life in a way from an earlier point he was reminiscing about the period of his life the stretch of five tenures of going to the house a truce could be one of the happiest periods of his life does that have something to do with his age . I suppose. At this point he is no longer as busy trying to get somewhere or accomplish something. He is more in the moment his i want to thank you both for the presentation. To his predecessors was it the intent of the framers of the constitution . You very good question. In general holmes is not what would be called an original west. He believes in the evolving constitution and the people who wrote the constitution and could not have the imagine to the being bay brought forth so i dont think in general he was driven by the obsession with what the founding generation would have thought. Remember he is not as a way from the founding generation born 1841 potentially having no members are met members there might have been less of a sense that we have to get in touch with holmes may have thought he was very well in touch because it was not too far past but that said there is one aspect where he does rely a the but a little bit of history when holmes writes that this is the theory of the constitution he has to contend with the fact in 1798 the country passed the sedition act under which people were prosecuted nearly for criticizing the government in what he does in the opinion is that was repudiated by jefferson when he took office and congress when they paid the fine that was levied under the sedition act. So in that way he does rely of earlier history to support his assertion it is the theory of our constitution we should let ideas fight it out with competition of the market. Justice holmes with the thought of the judiciary could talk about that. Makes this decision so surprising. He is one of their early advocates of judicial restraint. The idea judges should not stand in the way of what the majority wants to do should not use individual rights as a basis for a two strike down what congress has decided he did not think it was the role of the court to see what the majority wanted to urdu. The Constitutional Rights was often used to strike to show progress of legislation progressive labor laws in particular holmes dissented because he thought the court had no business striking down with the majority wanted to do. That is the perspective that he starts with and why it is surprising he turns around in this context to say now we should strike down with the majority did. That has a core we should step in as what is known as the double standard of constitutional law where the courts scrutinized very closely private activity speech to reproductive rights but dont scrutinize economic legislation. That is all in this opinion to. Good afternoon. Listening to you and with my knowledge Justice Holmes, he was right there at the beginning of that generation where they were reviewing that dogmatic idealism so it is about having and educated opinion of what they believed in. Fast forward to the baby boomer generation one way or another going into existentialism than there is the next generation with the existentialism so with that philosophy you dont have to do your homework just to have a shortcut if youre not happy then there is another. Is a very interesting question but it sounds to me like you compare pragmatism with ideology. Pragmatism is it in some ways an idea that it is good if it works just the way a fork is good if it hopes you eat food and holmes was a part of the development of pragmatism it is an excellent book called the metaphysical clubs that recounts the development of pragmatism in the country through the stories of holmes and William James and others in the late mid 19th century of america. He does reject ideology. He saw what it did in the civil war and the horrors that it produced. He was very skeptical that there was the objective truth. You can see that the man prominently because of skepticism about the objective truth what we think is the truce today we may discover tomorrow is not economic keep it going and people who are more ideological to think i have the troops our less patient their view is this is the truth i dont need to hear. So i do think there is a tension between pragmatism and ideology that holmes opinion represents the more pragmatic view. And he certainly believed your opinions needed to be informed and more importantly why it is okay to act in the face of uncertainty. There were not saying just because we dont know lew the truth doesnt mean we ever ask he says we have to ask. But the one way that we cannot act is to suppress speech because told the hearing all the ideas we could be confident the action taken is the best we can make at this point. I wanted to pick up on that red because all progressives is what is crucial to that debate and we have debates about the level of understanding that we have today. I dont know if you want to miss comment on that that what you try to do with these debates but i do think it is a relative question the context was different than what we struggle with today. I dont know if people our less interested to gather information today but it seems we have a very lively debates in this society and maybe there is a little or a lot more partisanship and people segment off and fox news and msnbc and maybe they are to talking to each other the way they shed and that is a concern. It is hard to know. There are so many edes ways to voice your opinion with such a media. But is there any punishment for voicing an opinion maybe not extremist but would you say there is . We have come along way with extraordinary protections for free speech in this country. For the most part it is fair to say gone are the days where you can be furnished for the adl said you express this of Freedom Court has done a bid to protect even unpopular speakers the debate we have now is how can we get the information that we need to have an educated debate . Is Edward Snowden being prosecuted . Has he been indicted because of his ideas or the government needs to enforce laws against leaking classified documents for National Security . There may be a little bit of the former but i think it is mostly the latter. Bradley manning they think is in the same situation now. Going after him as aggressively as the government did to seek a punishment that the government sought might suggest they are selectively targeting people who challenges they have done. And that is worrying. Social media is an interesting part of the equation in the context of schools or student speech raising questions to what extent can students be disciplined at school for what they put on facebook at home with the students are accessing facebook at school still has a disruptive effect. The social media has greatly expanded our ability to speak and democratized to get the message out that the same time it is a tricky question about freespeech. What was the general reaction to this opinion from his fellow justices in the general opinion of academia. Tell the story that you start the book with. Holmes writes the dissenting opinion in he always writes his dissent before the majority opinion is circulated because he wants a ready to go so he can distribute to his colleagues at everything was sent by messenger. He gets the majority opinion he sends the descent we know this because he writes in a letter he sent around the dissent and the next day three of his colleagues show up at his home in they are left up into his study and in the presence of his wife, they ask holmes not to publish a the descent. They have not issued the opinion yet it will be issued the next week and these members asked him for the sake of National Security not to publish the descent. They are worried coming from a figure as him a Civil War Veteran and the new england family, this will give to the enemy to weaken the countrys resolve against the site of the red menace. Holmes listens very patiently to their request for a great very civil discussion even affectionate but ultimately he says no and he has a duty to speak his mind. We know about this because when he lets them into his steady he tells a secretary tuesday and she hears everything that is said and she is Close Friends with dean acheson and secretary to Justice Brandeis to years later he writes a memoir of his early years in washington and tells the story. That was the reaction of the court. Brandeis joined the opinion to support holmes. In the public and the reaction in was mixed. Progressives were ecstatic and praised it. The editors of the new republic praised a tribute to holmes all of his friends these incredibly poignant emotional letters of gratitude to holmes. In academia it was received a less well. One of holmes longtime friends in a professor of law John Whitmore writes a scathing critique of holmes to send in a law review article and basically accused holmes of being naive and unaware of the threat the country faces and a number of other people say things along those lines. Is a dissenting opinion so even though some were upset it did not have an impact right away. The concern was it ultimately could and that is what he was worried about and he was right because although it was dissenting it carries the day. It takes a long time but the court in folks the dissent as a foundational statement of free speech and takes the place of the culture. What is the justification for suppressing speech that it shall make no law abridging the freedom of speech and. Not good or bad or dangerous or anything like that. Of weird to he gets the theories because they go through the recess of what is not protected. The ask my questions the exact same question. [laughter] you are a close reading of the First Amendment it says make no law and justice black used to fight that all the time. Make no law. Make not an a bad laws but no law. I think most First Amendment scholars and results included think the absolutist interpretation of the First Amendment is not plausible. There are too many ways that speeches used so perjury if you perjure yourself you use speech is that protected by the First Amendment or fraud or solicitation for murder . We use words a and suggest the mere fact that you do these things through words means they are protected is very problematic. Holmes is not for of the abrams descent but from an earlier decision he provides an example that free speech would not protect a man who shouts fire in a crowded theater. So why we cannot adopt the absolute interpretation. Because of arm will result if you have a crowded theater there would be a rush for the door but more importantly the harm that will result happens immediately before we have a chance to avert the harm so that is the basis for the standard we adopt this is a clear and present danger standard. You know, it from tom clancy but before it was made famous it was the lines in the holmes opinion that the speech is protected unless it poses a clear and present danger unless the danger is one that we cannot avert any other way. You can divert the stampede in the theater in any of their way bantu say ahead of time it is against the law. It would be hard to adopt the absolute interpretation but then how do figure out what is protected and what isnt . That is what it gives people like me a job for theories and explanations. Talk about a different character in the book he is not a young person he is middle age but he also plays a role in Justice Holmes changing of the mines. Fed is an interesting interplay. Learned hand was on the District Court even in his mid40s and was well regarded with a philosophical bent and he hears one of the first cases of the espionage act one of the first judges to interpret the act to deal with the free speech questions that it raises. He adopts a very narrow construction and so to leave a lot of room for free speech he does this before he writes the opinions but then it is reversed by the Second Circuit but he is upset and he thinks he is right but then he starts the whole process of these men to try to change his mind because they beat despite she hands on the train between washington d. C. They run into each other a and they talk about tolerance and holmeses response is used drake says sacred right when the fellow disagrees he cannot believe he has said this and doesnt know what to respond than holmes runs away then they pull into boston so he and follows up with a letter in which he makes a more sustained case said holmes response and they carry on correspondence about freespeech so he and deserves a lot of the credit for getting the process started. We have one more question but you put out a story about him and how his life is in a very different direction. In the epilogue i tie up some loose ends of the other characters a and although the country moves in a tolerant direction the other goes the other way in the late 40s now the chief judge of the Second Circuit and he is involved the communist party in america for teaching the principles of lenin and marx. And the essentially debts the clear and present team danger test that was articulated several decades before so wide as he and change his mind in the opposite direction . He came to believe of judicial restraint that the projections of the bill of rights were not judicially enforceable even to criticize the Supreme Court decision in brown vs. Board of education issued not be imposing its view on the contrary. It stems not from his support of mccarthyism. He came to believe that is not the role of judges to interfere of the political process. The local law is contingent and it will never be perfect in that is why we continue to have these conversations and these kinds of books. The book is called a the great dissent how Oliver Wendell holmes changed his mind and changed the history of free speech in America Thomas will be signing books in the lobby downstairs. Join us there. Thank you very much. [applause] [inaudible conversations]. But also to be here as the edwards said speaker. My father meant a lot to me. Obviously as most parents do but he was very important to me as a father as well as who he was too everyone else. So thank you very very much for inviting me here. I have just published this book called looking for palestine. The subtitle is also very important because its growing up confused in an arabamerican family and that is the main thing that propelled me to write this book, was my own confusion and fear and apprehension about being the daughter of this famous palestinian and not really feeling like i had any idea what that meant or who i was. So im going to just talk a little bit about whats in the book to give you a background on that and done im going to read to you from it because i feel like thats explaining what what i have already written and just to give you an idea of how my own identity as a palestinian american has been how i formed it on my own which has been very difficult. My mothers from lebanon and my mom is from a Christian Family but they are actually