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12 The principal Supreme Court decision that most embodies these features of the modern First Amendment is New York Times Co. v. 13 At issue in Sullivan was the constitutionality of state common law rules relating to defamation—at least as applied to suits brought by public officials who seek damages against the press for false statements made about them. 14 From this premise the Court reasoned that the government had no business interfering with, or seeking to limit, public criticism by citizens of their elected representatives.

Much of Wigmore's concern in the article, as one would expect, is with the specific facts involved in the Abrams case. Holmes, he declares, had grossly minimized the risk to the country from the defendants' speech. By August 1918, he says, the United States had only begun its efforts to shore up the nearly defeated Allied countries, and the success or failure of that intervention was still a matter of considerable doubt. The outcome depended greatly on the still-uncertain capability of the country to produce the munitions needed to supply the soldiers then in the trenches in France—which, of course, it had been the aim of the Abrams defendants to disrupt.

Have we, it must therefore be asked, fallen victim to what the intellectual historian Isaiah Berlin called the "suffocating straitjackets" of "great liberating ideas"? 30 II This was certainly the uneasy sense, however inarticulate, many people had about the free speech position in the Skokie case— the sense of loss of judgment and of the ability to draw reasonable lines, to assess fairly the risks and costs of speech and the risks and costs to free speech of imposing limits. As it had for Wigmore 24 The Tolerant Society in 1920, the disjunction became too great; the free speech position appeared unjustified, and it raised disturbing implications.