No Law Means No Law

This chapter investigates how the Supreme Court's growing adoption of Millian philosophy was halted, and regressed, in the early 1950s. Dennis v. United States (1951) succinctly exhibited the anti-Millian approach taken by the Supreme Court during the early years of the Cold War: “The societal value of speech must, on occasion, be subordinated to other values and considerations.” Another Red Scare gripped the nation, bringing with it a feeling that dangerous ideas needed suppression. Nevertheless, Justices Hugo Black and William Douglas dissented in Dennis, Roth v. United States (1957), Barenblatt v. United States (1959), and other key early Cold War cases. This pair of jurists harkened back to the free speech libertarianism of Holmes and Brandeis, with some of their opinions not only referring to the older dissents and concurrences but also reading like summaries of On Liberty, sometimes citing Mill. By referencing the opinions of Holmes and Brandeis, Black and Douglas—eventually joined by Chief Justice Earl Warren and Justice William Brennan—preserved Mill's thought in US constitutional law.