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No LawIntellectual Property in the Image of an Absolute First Amendment$
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David L. Lange and H. Jefferson Powell

Print publication date: 2008

Print ISBN-13: 9780804745789

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804745789.001.0001

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Justice Holmes and the Arrival of Balancing

Justice Holmes and the Arrival of Balancing

(p.225) Chapter 9 Justice Holmes and the Arrival of Balancing
No Law
Stanford University Press

Two opinions by Justice Oliver Wendell Holmes, Jr., filed in the series of Espionage Act cases which the Supreme Court decided in 1919—his opinion for the Court in Schenck v. United States and his dissent in Abrams v. United States—raised the curtain on serious consideration of the First Amendment. Holmes's opinions remain paradigmatic examples of the sort of reasoning presupposed in modern First Amendment law. This chapter examines what the foundations of that law ignore, and with what is simply presupposed away, without attention or concern, in that tradition of legal argument.

Keywords:   First Amendment, Justice Oliver Wendell Holmes Jr, Espionage Act, Schenck v. United States, Abrams v. United States, First Amendment, legal argument

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