Scholarship@WashULaw

Document Type

Article

Publication Date

2019

Publication Title

Notre Dame Law Review

Abstract

Oliver Wendell Holmes’s dissent in Abrams v. United States is one of the intellectual anchors of modern First Amendment doctrine. In the century since Abrams, we have witnessed changes in society, technology, and politics that have shaped and reshaped the contours of our First Amendment landscape. But not everything has changed — some aspects of our human experience remain remarkably similar to the context in which Holmes wrote. One unchanged aspect of the human condition is our inability to know with certainty. Confronted with this reality in his own day, Holmes at times gestured toward a foundationless relativism. But even if his larger corpus tends in that direction, his Abrams dissent can be read to sketch a less skeptical approach rooted in a kind of epistemic humility. This interpretation enlists Holmes as an advocate for more charitable discourse across deep differences. In today’s pluralistic society, acknowledging our lack of certainty can help us move toward better dialogue with one another.

Part I offers a reading of Holmes’s Abrams dissent that focuses on the humility underlying Holmes’s epistemic claims and explains the implications of this humility for discourse norms. Part II distinguishes epistemic humility from more skeptical views. Part III then applies a lens of epistemic humility to three kinds of truth claims in contemporary discourse: claims whose certainty is not provable (focusing on the example of religious claims), claims whose practical certainty is not yet proven (focusing on the example of medical treatments of transgender children), and claims that are certain to be false (focusing on the example of demonstrable lies).

Keywords

First Amendment, Oliver Wendell Holmes, Pluralism, Disagreement, Dissent, Tolerance, Doubt

Publication Citation

John D. Inazu, Holmes, Humility, and How Not to Kill Each Other Symposium: Contemporary Free Speech: The Marketplace of Ideas a Century Later, 94 Notre Dame L. Rev. 1631 (2019)

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