Abrams v. United States

250 U.S. 616 (1919), argued 21 Oct. 1919, decided 10 Nov. 1919 by vote of 7 to 2; Clarke for the Court, Holmes in dissent. On 23 August 1918, Jacob Abrams, a Russian immigrant and an anarchist, was arrested in New York City along with several of his comrades, among them Molly Steimer, Hyman Lachowsky, and Samuel Lipman. They had written, printed, and distributed two leaflets, one in English and one in Yiddish, which condemned President Woodrow Wilson for sending American troops to fight in Soviet Russia. The Yiddish leaflet also called for a general strike to protest against the government's policy of intervention. Abrams and the others were indicted under the Sedition Act of 16 May 1918, which made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language” about the United States' form of government, or to “willfully urge, incite, or advocate any curtailment of production” of things “necessary or essential to the prosecution of the war … with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.” Tried in October 1918 before federal district court judge Henry DeLamar Clayton, Jr., they were found guilty and sentenced to 15‐ to 20‐year prison terms.

In March 1919, while Abrams and the others were out on bail, the Supreme Court upheld the convictions of antiwar socialists under the 1917 Espionage Act (Schenck v. United States) and under the 1918 Sedition Act (Debs v. United States). Both decisions were unanimous, and both were written by Oliver Wendell Holmes, who reasoned in Schenck that “[t]he question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (p. 52).

Justice John H. Clarke's majority decision in Abrams closely followed Holmes's reasoning. The leaflets created a clear and present danger, Clarke said, because they had been distributed “at the supreme crisis of the war” and amounted to “an attempt to defeat the war plans of the Government” (p. 623). Moreover, he continued, even if the anarchists' primary purpose and intent had been to aid the Russian Revolution, the general strike they advocated would have necessarily hampered prosecution of the war with Germany.

But by the time the Court ruled in Abrams, Holmes had modified his view. Disturbed by the repression resulting from antiradical hysteria and influenced by the views of several friends and acquaintances—including Harvard Law School professor Zechariah Chafee, federal district judge Learned Hand, and political theorist Harold J. Laski—Holmes edged toward a more libertarian interpretation of the clear and present danger standard. Consequently, his dissent in the Abrams case, joined by Louis D. Brandeis, refined the standard in crucial ways.

Congress, Holmes now declared, “constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent” (p. 627). Holmes denied that “the surreptitious publishing of a silly leaflet by an unknown man” (p. 628) created such a danger, and he denied, too, the existence of the requisite intent, since Abrams' “only object” was to stop American intervention in Russia. Holmes reasoned that the First Amendment protected the expression of all opinions “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country” (p. 630).

The Supreme Court would wrestle with reformulations of the clear and present danger standard for fifty years, until, in Brandenburg v. Ohio (1969), it substituted a direct incitement test. What endures in Holmes's Abrams dissent is his eloquent discussion of the connection between freedom of speech, the search for truth, and the value of experimentation: “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe in the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment” (p. 630).

See also Clear and Present Danger Test; Espionage Acts; First Amendment Speech Tests; Speech and the Press; World War I.

Bibliography

• Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (1987)

— Richard Polenberg

• 250 U.S. 616 (1919)
• Vote: 7–2
• For the Court: Clarke
• Dissenting: Holmes and Brandeis

Jacob Abrams was arrested in New York City on August 23, 1918. He and several friends had written, printed, and distributed copies of a leaflet that severely criticized President Woodrow Wilson and the U.S. government. The leaflet opposed President Wilson's decision to send a small U.S. military force to Russia during the civil war that followed the communist revolution of 1917. The communists, led by Vladimir Lenin, were fighting against anticommunist Russians and various foreign military forces to retain control of the government. Abrams's leaflet urged American workers to walk off their jobs in protest against President Wilson and the U.S. government and in support of the new communist government in Russia.

Abrams and his friends were arrested for violating the Espionage Act of 1917 and the Sedition Act of 1918. These laws made it a crime to write and publish disloyal or profane statements that were intended to interfere with production of goods necessary to the defense of the United States during wartime. The laws were passed to control antiwar activity after the United States entered World War I.

The Issue

The specific question facing the Supreme Court pertained to the constitutionality of the Espionage Act and the Sedition Act. These federal laws were designed to limit freedom of expression in order to protect national security during wartime. However, the 1st Amendment says, “Congress shall make no law… abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Did enforcement of the Espionage Act and the Sedition Act violate the 1st Amendment free speech and press rights of Jacob Abrams?

Opinion of the Court

Justice John H. Clarke, writing for the Court, decided against Abrams's claims that his 1st Amendment rights were violated. Clarke based his decision on the “clear and present danger” and “bad tendency” tests stated by Justice Oliver Wendell Holmes in Schenck v. United States (1919). According to these two tests, which Holmes used interchangeably in Schenck, free speech and press could be limited if they were intended to cause an illegal action or if they threatened national security.

Justice Clarke wrote that “men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce.” Clarke argued that “the obvious effect” of the leaflet “would be to persuade persons… not to work in ammunition factories, where their work would produce bullets, bayonets, cannons, and other munitions” needed by U.S. military forces in World War I.

Dissent

Justice Oliver Wendell Holmes disagreed, for himself and Justice Louis Brandeis, with Justice Clarke's use of the “clear and present danger” test in this case. And he repudiated the “bad tendency” test. Justice Holmes maintained that the government had the right to protect itself against speech that immediately and directly threatens the security and safety of the country. He wrote that the 1st Amendment protected the expression of all opinions “unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” Justice Holmes denied that Abrams's actions and intentions represented a danger sufficient to justify limitation of his freedom of expression.

Justice Holmes concluded his dissent with a compelling theory of free speech in a constitutional democracy. Arguing for “free trade in ideas,” Holmes said: “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market…. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.”

Significance

The Court's opinion in this case prevailed only in the short run. The dissent of Justice Holmes eventually had more influence on the Court and the American people. Holmes modified the “clear and present danger” test he had stated in “Schenck”, which had been used interchangeably with the “bad tendency” test. In Abrams, Holmes rejected the “bad tendency” test, which emphasized a person's intentions to encourage lawless behavior. Instead, Holmes stated in his Abrams dissent that a “clear and present danger” exists only when speech can be immediately and directly connected to specific actions that cause illegal behavior threatening the safety or security of the United States. If an imminent danger could not be demonstrated, then speech could not be lawfully limited. The Abrams dissent has been called the best defense of free speech ever written by an American.

See also Freedom of speech and press; Schenck v. United States; Seditious libel

Sources

• Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (New York: Viking, 1987)

Abrams v. United States
Supreme Court of the United States
Argued October 21 – 22, 1919 Decided November 10, 1919
Full case name: Jacob Abrams, et al. v. United States Citations: 250 U.S. 616; 40 S. Ct. 17; 63 L. Ed. 1173; 1919 U.S. LEXIS 1784 Prior history: Defendants convicted, U.S. District Court for the Southern District of New York Subsequent history: None
Holding
Defendants' criticism of U.S. involvement in World War I was not protected by the First Amendment, because they advocated a strike in munitions production and the violent overthrow of the government.
Court membership
Chief Justice: Edward Douglass White Associate Justices: Joseph McKenna, Oliver Wendell Holmes, Jr., William R. Day, Willis Van Devanter, Mahlon Pitney, James Clark McReynolds, Louis Brandeis, John Hessin Clarke
Case opinions
Majority by: Clarke Joined by: White, McKenna, Day, Van Devanter, Pitney, McReynolds Dissent by: Holmes Joined by: Brandeis
Laws applied
U.S. Const. amend. I; 50 U.S.C. § 33 (1917)

Abrams v. United States, 250 U.S. 616 (1919), was a decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to criticize the U.S. federal government. The Court ruled 7-2 that the Act did not violate civil rights under the First Amendment, with Justices Oliver Wendell Holmes and Louis Brandeis dissenting. The case was overturned during the Vietnam War era in Brandenburg v. Ohio.

Holmes' Dissent

In this famous dissent, Holmes declares that the issue here is one of fact and degree. He continues with the test that he laid out in the earlier free speech cases such as Schenck v. United States, which was to look at whether there is a clear and present danger that would justify the regulation of the content of the speech. Without such a danger, regulation of speech content is presumptively invalid. But here, unlike where Holmes wrote for the majority, he doesn’t defer to the legislature. Some experts point to this as the birthing of modern Constitutional law – the court was finally accepting that law and politics are not radically different.

“Government may regulate speech that produces or intended to produce a clear and imminent danger”. Here, like in his previous majority opinions, he focuses on intent. The argument for this is that the activity with the intent is more likely to cause such a result than a comparable activity without such an intent. The focus on intent may be part of the likelihood of causation of a tangible harm analysis. However, critics claim that there is another, and very problematic, way of reading this. They focus on Holmes' description of the case, as the "surreptitious publishing of a silly leaflet by an unknown man," and therefore there was not a clear and present danger here. What danger can these “puny” people pose to anyone? The critics claim that this is not a great way to make the freedom of speech argument, because under such a formula you only get protection if you are poor, puny and irrelevant. For the most part, this type of argument has drifted out of the law.

In explaining why we should not regulate speech content when there is no imminent danger, Holmes writes that “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” There is a market, one that tends to produce at least provisionally good results. Therefore, “normally, we should leave the correction of evil councils to time.”

Research Resources

• First Amendment Library entry for Abrams v. United States

External links

• Full text of the decision courtesy of Findlaw.com

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