Nov. 8 Symposium: A Reassessment of Holmes’ “Great Dissent”

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“Abrams at 100” commemorates the centennial anniversary of the release of Supreme Court Justice Oliver Wendell Holmes Jr.’s landmark dissent in Abrams v. United States (1919). The conference will examine Holmes’s contributions to First Amendment scholarship and his complex and enduring legacy.

The conference will be located at Columbia Law School in Jerome Greene Hall Room 105, and the schedule for the event is as follows:

8:30–9:30 a.m. Buffet Breakfast

9:30–9:45 a.m. Welcoming Remarks

  • Katy Glenn Bass (Knight First Amendment Institute)
  • Vincent Blasi (Columbia Law School)

9:45–11:15 a.m. Panel One: Historical Perspective

This panel will explore the historical backdrop to Abrams v. United States and the factors—both biographical and intellectual—that informed Holmes’s dissent. How much of a departure did Abrams represent from Holmes’s prior statements about free speech? What traces of his earlier thinking—about free speech and other issues—can be found in Abrams? How did the larger cultural and academic debate about free speech and judicial review influence his dissent?

Moderator: Jeremy Kessler (Columbia)

Panelists:

  • Thomas Healy (Seton Hall)
  • Robert Post (Yale)
  • David Rabban (Texas)
  • Laura Weinrib (Harvard)

11:15–11:30 a.m. Break

11:30 a.m.–1 p.m. Panel Two: The Marketplace of Ideas and the Search for Truth

This panel will examine the justification Holmes offers for the protection of speech in Abrams. What does Holmes mean by truth? How does he envision free speech promoting the search for truth? What is the function and meaning of the marketplace metaphor, and what relevance, if any, does it have for contemporary First Amendment theory and doctrine.

Moderator: David Pozen (Columbia)

Panelists:

  • RonNell Andersen Jones (Utah)
  • Joseph Blocher (Duke)
  • James Weinstein (Arizona State)
  • Tim Wu (Columbia)

1:15–2:15 p.m. Lunch

Speaker: Lee Bollinger (President of Columbia University)

2:15–3:45 p.m. Panel Three: Clear and Present Danger and the Matter of Harm

This panel will explore Holmes’s approach to the harms speech can cause. The clear and present danger test, introduced in Schenck v. United States but not fully realized until Abrams, focuses on the temporal nexus between speech and harm. But Holmes left many questions unanswered. What harms can be invoked to limit speech? What is the connection between the danger test and Holmes’s justification for free speech? And what should we make of Holmes’s tolerance for “opinions we loath” and for the attitude of resignation reflected in his later statement that if such opinions “are destined to be accepted by the dominant forces in the community, the only meaning of free speech is that they should be given their chance and have their way?”

Moderator: Amy Adler (NYU)

Panelists:

  • Vince Blasi (Columbia)
  • Catharine A. MacKinnon (Michigan and Harvard)
  • Frederick Schauer (Virginia)
  • Jeremy Waldron (NYU)

3:45–4 p.m. Break

4–5:30 p.m. Panel Four: Holmes and Modern Doctrine

In the century since Abrams was decided, First Amendment doctrine has grown exponentially, and the Supreme Court has addressed numerous questions about free speech that Holmes was never asked to resolve. Is money speech? Does the First Amendment protect intentional falsehoods? Does the clear and present danger test apply to “material support” of terrorism? In the interest of bringing a historical perspective to such questions, this panel will analyze a series of modern free speech controversies in light of Holmes’s view of the First Amendment.

Moderator: Alex Abdo (Knight First Amendment Institute)

Panelists:

  • Leslie Kendrick (Virginia)
  • Genevieve Lakier (Chicago)
  • Donald Verilli (Munger, Tolles & Olson, former U.S. Solicitor General)
  • Sonja West (Georgia)

5:45–7:30 p.m. Dinner

Speaker: Burt Neuborne (NYU)

The conference will be open to the public and does not require registration.

Questions? Contact NYU Law Professor Amy Adler amy.adler@nyu.edu or Columbia Professor Vincent Blasi at blasi@law.columbia.edu

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