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I ran across this gem while studying the doctrine of defamation today. It was written by Justice Holmes who was dissenting (that is, disagreeing with) the majority vote of the Supreme Court. It was written way back in 1919.

The case arose because the Defendants had published pamphlets judged to be disloyal to the U.S. during a time of war. Although Justice Holmes believed the literature’s content had missed the mark he did not believe that censorship was appropriate.

In his concluding comments Holmes admits that â?? although insensitive â?? censorship is very effective.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises.

Abrams v. United States, 250 U.S. 616, 630. (emphasis added).

He goes on to show the higher, better approach in what was ultimately dubbed the “Marketplace of Ideas”.

â?¦ 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. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law . . . abridging the freedom of speech.” Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

Id. at 630-631. (emphasis added).

This Supreme Court opinion strikes me as clever this morning at 2:47am.

Justice Jackson is commenting on evidentiary rules and the need to keep parties’ advantages in check.

Experience taught a necessity that [the defendant’s illogical advantage] be counterweighted with equally illogical conditions to keep the advantage from becoming an unfair and unreasonable one.

Michelson v. United States, 335 U.S. 469, 478-479 (U.S. 1948).

Later in the same opinion, Jackson defends the Court’s decision not to tear down the “illogical” system by following that sage advice, “Let sleeping dogs lie”.

We concur in the general opinion of courts, textwriters and the profession that much of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counter-privilege to the other. But somehow it has proven a workable even if clumsy system when moderated by discretionary controls in the hands of a wise and strong trial court. To pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice.

Id. at 486.

This little excerpt (below) reminded me that life happens at the margins. While I’m busy planning out my perfect life in ideal black and white, human relationships occur somewhere along the edge of the page. Life and feelings refuse to be simple.

Similarly, lawyers don’t make a living in the black and white. People who come to attorneys do so with all the confusion and complexity in which they live. The attorney’s job is to sort through the mess and make as compelling an argument as he or she can based on the client’s story…

You may think, “The law is what it is,” but that thought implies that the law always is concrete and black and white. Not so. The black letter law legal principles in any given area usually are not the rules over which you will be litigating. The law at the margins of every area of law (and they often are broad margins) is fluid, changing, painted in shades of gray, not necessarily well-defined, and sometimes even inconsistent. In many cases, it will take all your skill as an interpreter and analysis of legal sources to take the raw material of the law and find a way to present it in such a way that the client’s position looks reasonable, logical, and downright righteous under the law. But at least you often will have a good supply of paint and canvas that the authors of legal sources have provided for you.

Adversarial Legal Writing and Oral Argument, pp. 30 (Murray).

Happy contractual relationships are all alike; but every unhappy contract relationship is unhappy in its own way.

Leo Tolstoy
Anna Karenina