The Holmes Truth: Toward a Pragmatic, Holmes-Influenced Conceptualization of the Nature of Truth
| Author | Jared Schroeder |
| Position | Southern Methodist University, Dallas, Texas |
| Pages | 169-203 |
The holmes TruTh: Toward a PragmaTic, holmes-
influenced concePTualizaTion of The naTure of TruTh
Jared Schroeder*
Southern Methodist University, Dallas, Texas
ABSTRACT
Truth as a fundamental ingredient within the ow of discourse and the application of
freedom of expression in democratic society has historically received considerable
attention from the U.S. Supreme Court. Many of the Court’s central precedents regarding
First Amendment concerns have been determined by how justices have understood
truth and how they have conceptualized the complex relationship truth and falsity
share. Despite the attention truth has received, however, the Court has not provided
a consistent understanding of its meaning. For these reasons, this article examines
how the Supreme Court has conceptualized truth in freedom-of-expression cases,
ultimately drawing upon the results of that analysis, as well as pragmatic approaches
to philosophy, the so called “pragmatic method” put forth by American philosopher
William James, to propose a unifying conceptualization of truth that could be employed
to help the Court provide consistency within its precedents regarding the meaning of
a concept that has been central to the Court’s interpretation of the First Amendment
since, in many ways, another pragmatist and friend of James’s, Justice Oliver Wendell
Holmes, substantially addressed truth in his dissent in Abrams v. United States. The
article concludes by proposing that the courts conceptualize the nature of truth via
three substantially related understandings: that truth is a process, that it is experience-
funded, and that it is not absolute and is best approached without prejudice. Each of the
three ingredients relates, at least to some extent, with thematic understandings put forth
by the Court in previous freedom-of-expression cases, and therefore does not represent
a signicant departure from justices’ traditional approaches to truth. The model, most
ideally, does seek, with the help of pragmatic thought and ideas put forth by Justice
Holmes, to encourage consistent recognition of certain principles regarding truth as
justices go about considering its nature in First Amendment cases.
KEYWORDS
First Amendment; Truth; Pragmatism; Holmes; Supreme Court.
CONTENTS
Br. J. Am. Leg. Studies 7(1) (2018), DOI: 10.2478/bjals-2018-0005
© 2018 Jared Schroeder, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
* Jared Schroeder is an assistant professor of journalism at Southern Methodist University in
Dallas, Texas. He is the author of The Press Clause and Digital Technology’s Fourth Wave.
i. PragmaTism ..................................................................................................173
A. Pragmatism as Method ........................................................................ 174
B. Toward Pragmatically Discerned Truth .............................................. 176
7 Br. J. Am. Leg. Studies (2018)
ii. The holmes TruTh ..............................................................................177
A.The Mirage of Absolute Truth .......................................................177
B. Becoming a “Bettabilitarian” ........................................................179
C. Labor and Socialist Unrest ............................................................180
D. The Unpublished Dissent ..............................................................181
E. The Three Sedition Cases ..............................................................182
F. The Best Test of Truth ....................................................................184
G. Final Dissents ................................................................................185
iii. TruTh and The courT afTer holmes .................................................187
A. Pennekamp v. Florida....................................................................189
B. Beauharnais v. Illinois ...................................................................190
C. New York Times v. Sullivan ..........................................................192
D. Cox v. Cohn ..................................................................................192
E. Philadelphia Newspapers v. Hepps ...............................................193
F. United States v. Alvarez .................................................................194
iV. analysis ..............................................................................................195
A. The Value of Free Debate as a Public Good ...............................195
B.The Provisional and Contingent Nature of “Truth” .......................197
C. Communication as a Social Process ..............................................199
V. ProPosing a unified concePTualizaTion of TruTh .............................. 201
170
The holmes TruTh: Toward a PragmaTic, holmes-influenced
concePTualizaTion of The naTure of TruTh
The concept of truth as an integral component in the exercise of discourse
and freedom of expression in democratic society has historically received
considerable attention from the Supreme Court. Many of the Court’s pivotal
decisions regarding First Amendment concerns have been determined by how
justices have conceptualized truth and how they have understood the complex
connection truth and falsity share in free debate.1 Concerns regarding truth and
protections for truthful statements have received so much attention that it would
be easy to conclude that the matter is settled – the First Amendment in nearly all
instances protects truthful statements. Such a conclusion, however, only identies
the central role of truth in discourse. It does not address the question of how
justices have understood truth or the nature of truth in the sense that how justices
conceptualize what truth is, in a philosophical sense, will inuence how the
Court rules within a variety of areas of First Amendment law. The lack of clarity
regarding the nature of truth within the Court’s jurisprudence, despite there being
a relatively clear protection for truthful statements, can be compared with the
statement that the First Amendment does not protect obscene content.2 The Court
has consistently upheld this conclusion, though the challenge of dening what
constitutes obscenity persists.3 Similarly, the Court has consistently emphasized
the centrality of truth in communication in democratic society, but has not provided
a consistent understanding of its meaning.
Importantly, consistently identifying that the First Amendment protects truthful
speech is not the same as exploring the Court’s philosophical conceptualizations
regarding the meaning of truth in an effort to both identify the reasons that justices
have used to rationalize conclusions in truth-focused cases and to consider a
potentially unifying model for how justices could understand truth, thus potentially
providing greater consistency in their rulings.4 After all, the Court has constructed
tests in areas such as threatening speech toward the government,5 obscenity,6
and advertising regulation,7 for example, but has not constructed a consistent
approach to evaluating matters of truth and falsity, and their merits as contributors
to communication in a democratic society. Such a concern has been highlighted
1 See Abrams v. United States, 250 U.S. 616 (1919); Near v. Minnesota, 283 U.S. 697
(1931); Thornhill v. Alabama, 310 U.S. 88 (1940); Chaplinsky v. New Hampshire, 315
U.S. 568 (1942); Dennis v. United States, 341 U.S. 494 (1951); Burstyn v. Wilson, 343
U.S. 1952; Roth v. United States, 354 U.S. 476 (1957); New York Times v. Sullivan,
376 U.S. 254 (1964); Columbia Broadcasting System v. Democratic Nat’l Committee,
412 U.S. 94 (1973); Cox v. Cohn, 420 U.S. 469 (1975); Hustler v. Falwell, 485 U.S. 46
(1988) for examples.
2 Miller v. California, 413 U.S. 15 (1973).
3 Cass Sunstein, Pornography and the First Amendment, 1986 duke l.J. 589, 591-593
(1986). Prior to the Miller Test, Justice Potter Stewart expressed his frustration with
dening obscenity when he wrote, “I shall not today attempt to further dene the kinds
of material I understand to be embraced within that shorthand description and perhaps
I could never succeed intelligibly doing so. But I know it when I see it,” Jacobellis v.
Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
4 alexander m. Bickel, The leasT dangerous Branch: The suPreme courT aT The Bar
of PoliTics 112 (1962); James H. Fowler & Sangick Jeon, The Authority of Supreme
Court Precedent, 30 social neTworks 16, 16 (2008).
5 Brandenburg v. Ohio, 395 U.S. 444 (1969).
6 Miller v. California, 413 U.S. 15 (1973).
7 Central Hudson Gas & Electric v. Public Service Comm., 447 U.S. 557 (1980).
171
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