The article is here; the Introduction:
The last First Amendment opinion ever written by free speech's first great judicial defender is often omitted from the pantheon of free speech cases. Of course there are exceptions, as scholars have explored how the Court's decision in Gitlow v. New York approached the issue of incorporation, its illustration of the "bad tendency" test, and what it shows about the sometimes-competing currents of First and Fourteenth Amendment doctrine at the time. But even the most thoughtful and thorough treatments of Justice Oliver Wendell Holmes' free speech jurisprudence have typically treated his dissent in Gitlow as "too compressed to be clear" or "better characterized as an example of Holmes' distinctive consciousness as a judge than as an attempt to forge a new path in First Amendment jurisprudence after Abrams [v. United States]."
The aim of this Essay is to argue that Holmes' dissent in Gitlow, brief as it is, provides a surprisingly comprehensive guide to some of the most important and consistent themes in his thought, and thus to the development of free speech law and American legal thought more broadly. That map emerges from careful parsing of the opinion's text—not only the famous-if-obscure declaration that "[e]very idea is an incitement," but the phrases that surround it. Close reading of Holmes' imaginative language is nothing new; entire free speech literatures have arisen around imagery like "the marketplace of ideas" and "falsely shouting fire in a theatre and causing a panic," to say nothing of doctrinal phrases like "clear and present danger." Such metaphors and aphorisms have been treated both as guides to understanding Holmes and as lodestars for the First Amendment. This Essay attempts the same for some of Gitlow's lesser-analyzed language.
