In 1924, Illinois issued a charter for a non-profit corporation, the Chicago-based Society for Human Rights (SHR). The group’s founder, Bavarian-born Henry Gerber, borrowed its name from a gay rights group in 1920s Germany, where the cultural climate was better for gay people than in the United States. Although it nowhere explicitly referred to homosexuals, the charter declared the group’s purpose “to promote and to protect the interests of people who by reasons of mental and physical abnormalities are abused and hindered in the legal pursuit of happiness which is guaranteed them by the Declaration of Independence.” It promised “to combat the public prejudices against them by dissemination of facts according to modern science among intellectuals of mature age.” Sodomy was then a crime in every state. In fact, several states had passed laws allowing the incarceration of “sexual psychopaths,” understood to include gay men, for undetermined periods of time in mental institutions. The group pledged to comply with the law and forswore any advocacy, much less incitement, to violate it.
Just five years before Gerber founded SHR, Justice Holmes breathed life into what would become the foundational principles of First Amendment doctrine. Writing for a unanimous Court in Schenck v. United States, he granted that government had broad power in wartime to suppress subversive speech. But broad power is not boundless power. It was limited to circumstances in which the speech presented a “clear and present danger” to the war effort. If even war could not justify unlimited power, what further limitations on state regulation of speech might apply when a lesser threat was present?
More importantly, in dissent in Abrams v. United States, Holmes doubted the ability of government to determine “truth” about “ultimate good.” Rather, “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” History showed that such conclusions were better left to a free exchange of ideas. A willingness to suppress speech based on absolute certainty—what Holmes called “fighting faiths”—was the real enemy of political and philosophical truth. How seriously would the Court and the nation take this deep skepticism?
Dale Carpenter, Born in Dissent: Free Speech and Gay Rights, 72 SMU L. Rev. 375 (2019).