Free speech counterfactual

Mike Dorf and Thomas Healy have an interesting exchange on the following counterfactual: What if Holmes had not changed his mind about the freedom of speech and dissented in Abrams? Would we still have developed our liberal, speech-protective model of the First Amendment? Would others--Justice Brandeis, Learned Hand, Zechariah Chafee, Justices Black or Douglas (not to mention Justice Brennan, who is not discussed despite New York Times)--have laid the intellectual foundation and got a majority of the Court to go along? Healy has is doubts, while Dorf is intrigued with the idea that Brandeis' model--from Whitney--would have carried the day over Holmes' marketplace.

The discussion is triggered by Healy's forthcoming book, The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America.

Update: A reader points me to a 1999 Constitutional Commentary symposium, organized by Jim Chen, on Constitutional Butterflies (i.e., the butterfly effect applied to constitutional law). It includes a contribution by my colleague (and former GuestPrawf) Tom Baker on Holmes' fortuitous train ride with Learned Hand (described in Gerald Gunther's bio of Hand), the effect it had on Holmes' vision of free speech, and the effect that Holmes' vision had on later First Amendment development. Interestingly, Healy argues in his post that Hand questioned and ultimately renounced his original position on free speech (part of the reason Healy believes that, absent Holmes' switch, Hand would not have been the one to carry the speech-protective mantle).