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My four favourite judges
CJEU Advocate General Gerard Hogan on why he defends free speech Pic:RollingNews.ie

08 Jul 2020 / rule of law Print

Distinguished CJEU justice defends free speech rights

Advocate General Gerard Hogan of the European Court of Justice (CJEU) has said that in defending a newspaper’s right to free speech, he was profoundly influenced by a distinguished US judge Oliver Wendell Holmes.

Speaking at the Hardiman summer lecture series, Advocate General Hogan spoke about his favourite judges and why they their judicial qualities and legal writing appealed to him.

Advocate General Hogan said in his talk that we have no difficulty with free speech for those with whom we agree.

However, US Judge Oliver Wendell Holmes defended ‘freedom for the thought which we hate’.

Deeply-held views

“It is much more difficult to protect free speech for those who espouse views contrary to deeply-held views of any given society,” he continued.

Holmes’ views have been highly influential and form the backbone of the US Supreme Court first amendment jurisprudence, he said.

Advocate General Hogan said he had been profoundly influenced himself by Holmes’ thinking.

In DPP v Independent Newspapers, the case concerned the publication of the so-called Anglo tapes in 2014, at a time when trials of persons mentioned were still some years distant.

Contempt of court

A majority of the court held that the newspaper was in contempt of court for publishing the tapes. 

The then Justice Hogan dissented.

He wrote: “Admittedly, we have not, I think, the same respect for the constitutional protection of free speech which has been one of the great glories of the US constitutional tradition since the days of Holmes and Brandeis.”

Justice Hogan went on to say that free speech is the life blood of any democracy and the democratic rule-of-law-based state, envisaged by article five of the Constitution.

Robust comment

His dissent in that case said that while the right to a fair trial must be protected, “we can’t live in an antiseptic, sterile society where robust comment on public affairs is treated like a kind of hostile germ against which the most elaborate antibacterial precautions must be taken”. 

Advocate General Hogan said he was smitten by Holmes’ grandeur, elegance and style, and his dedication to the protection of free speech. 

“He resonated hugely with me,” he said.

Judge Oliver Wendell Holmes was an elegant legal writer, and in many ways the greatest legal philosopher the common law legal world has ever known, he said.

Holmes made a great contribution in terms of free speech and is author of the phrases ‘no free speech to shout ‘fire’ in a crowded theatre’ and ‘clear and present danger’.

“Until the 1920s, the first amendment was really a thing writ on water… and Holmes more than anyone else turned the ship around,” Advocate General Hogan noted.

By extension, the right to free speech is guaranteed by Article Ten of the European Convention on Human Rights (ECHR), he said.

“His contribution to American law is quite profound and he certainly re-envisaged how the American system of civil procedure should be organised by saying there is in fact no such thing as federal common law.

Substantive due process 

“And in terms of constitutional law he posed this idea of substantive due process and the 14th amendment, and guaranteed property rights”.

Holmes’ judicial legacy is marred by the language in a disturbing 1926 Buck v Bell judgment which led to 70,000 forced sterilisations on the basis of cognitive impairment, and is considered a victory for the eugenics movement, Advocate General Hogan said.

Mystique

He continued that Wendell Holmes had charm and mystique from his Civil War background and made wide friendships, as well as having a wonderful writing style.

The US Civil War, in which he fought with gallantry, influenced his thinking about the need for legal realism, he concluded.

Advocate General Hogan then spoke about his three other favourite judges.

They are:

  • Justice John Harlan,
  • Lord Atkin,
  • Lord Denning.

All four show judicial fidelity to the law, judicial courage and judicial creativity, he said.

Advocate Genera Hogan rated Justice John Marshall Harlan as the greatest judge on the US Supreme Court since the Second World War.

Elegance 

“What I particularly admire is his style, his elegance, his craftsmanship, his fidelity to the legal method, and in particular, his very sincere commitment to what might be termed ‘neutral judging’.

“You identify the legal principle and that brings you to the conclusion, rather than the other way around, of trying to identify the good guys and the bad guys and trying to make sure the good guys win,” he said.

“This is much more the idea of identifying a neutral legal principle and applying it to the facts of the case,” he said.

Advocate General Gerard Hogan then spoke about Judge Atkin, who gave a famous 1941 dissent, which said: “In England, amidst the clash of arms, the laws are not silent. 

“They may be changed but they speak the same language in war as in peace,” the judgment continues.

“It has always been one of the pillars of freedom, one of the principles of liberty…that judges are no respecters of persons, and stand between the subject and any attempted encroachments upon his liberty by the executive, alert to see that any coercive action is justified in law.”

Separation of powers

The case concerns the separation of powers and civil liberties and in particular the assistance that the judiciary should give to the executive in times of national emergency.

Advocate General Hogan said that Judge Atkin was 'sent to Coventry' by judicial colleagues after writing the dissenting judgment in Liversidge v Anderson, a landmark UK administrative law case which concerned the relationship between the courts and the state.

“In some ways he never recovered from that ordeal,” he noted. 

The judgment also quoted Humpty Dumpty and the judge faced letters from the then Lord Chancellor, asking him to withdraw his remarks.

Judicial courage

“Atkin showed real judicial courage in standing up for his principles and standing up for the rule of law,” Advocate General Hogan said.

“In some ways it would have been so easy to roll over and say ‘where do I sign up to the majority judgment’.

Advocate General Hogan termed his final subject, Lord Denning, “a legal genius in creative destruction”.

Denning was dissatisfied and unhappy with the ‘formalised and stultified’ practice of common law.

Denning and Holmes were legal idols in their respective jurisdictions, Advocate General Hogan said, but in many ways, Denning was a better technical lawyer than Holmes.

Blots on copybook

“Both also have terrible blots on their copybook,” he said, such as the Brimingham Six decision for Denning.

“Denning unfortunately deteriorated in terms of style from the 1960s onwards. He became a victim of his own success, and there was almost a cult of personality about him, in the British tabloid newspapers, which I don’t think necessarily suited the administration of justice.

“To some degree, his legacy has been tainted post-1962. The Denning style deteriorated in this staccato-style prose, sometimes with no verbs in sentences and so on.”

Advocate General Hogan said such language was jarring in somebody with consummate legal writing skills, such as Lord Denning.

Genius 

“For all that, he was a legal genius and changed the common law forever. He was a self-confessed legal iconoclast.”

Advocate General Hogan said the legal community had reason to be grateful to his four chosen judges, for their fidelity to the legal method, judicial courage, legal genius and creative destruction.

The Hardiman summer series has now concluded.

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