Abrams v. United States
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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
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Abrams v. United States
• 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)
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Abrams v. United States
| Abrams v. United States | ||||||
|---|---|---|---|---|---|---|
 Supreme Court of the United States |
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| Argued October 21–22, 1919 Decided November 10, 1919 |
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| Full case name | Jacob Abrams, et al. v. United States | |||||
| Citations | 250 U.S. 616 (more) 40 S. Ct. 17; 63 L. Ed. 1173; 1919 U.S. LEXIS 1784 |
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| 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 | ||||||
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| Case opinions | ||||||
| Majority | Clarke, joined by White, McKenna, Day, Van Devanter, Pitney, McReynolds | |||||
| Dissent | 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 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the Sedition Act of 1918.
The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building in New York City. One leaflet, signed "revolutionists", denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution and advocated the cessation of the production of weapons to be used against Soviet Russia.
The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years in prison. The Supreme Court ruled 7–2 that the Act did not violate the freedom of speech protected by the First Amendment. Justice John Hessin Clarke used a relatively restrictive speech test – "bad tendency" – to uphold the conviction. Justices Oliver Wendell Holmes and Louis Brandeis dissented and said that the more speech protective standard – "clear and present danger" – ought to be applied to overturn the conviction. The case was ultimately overturned during the Vietnam War era in Brandenburg v. Ohio (1968), a case against the KKK where the Court adopted the "incitement to imminent lawless action" standard – a test even more speech protective than "clear and present danger."
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Majority Opinion
Writing for the majority, Justice John Hessin Clarke asserted that the leaflets were an appeal to violence against the United States government as opposed to peaceful change. In quoting heavily from the leaflets themselves, Clark wrote: "This is not an attempt to bring about a change of administration by candid discussion, for no matter what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create an attempt to defeat the war plans of the government of the United States, by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war."
Clark further discussed the purpose behind the leaflets, stating that they "sufficiently show, that while the immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our government sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe."
Clark explained that the leaflets called for a general strike and the curtailment of munitions production, in violation of the Sedition Act of 1918. Although the distribution of the leaflets did not incite immediate resistance, the materials or speech had a "tendency" to encourage violent resistance, and therefore were not protected by the First Amendment: "...the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war... and, the defendants, in terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war.... Thus it is clear not only that some evidence but that much persuasive evidence was before the jury tending to prove that the defendants were guilty as charged...."
Holmes' Dissent
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In his dissent, Holmes wrote that although the defendant's pamphlet called for a cease in weapons production, it had not violated the Act of May 16, 1918 because they did not have the requisite intent "to cripple or hinder the United States in the prosecution of the war." Holmes distinguishes Abrams's intent as being only to minimize Russian casualties, with any harm to the United States war efforts being incidental and unintended.[1]
Holmes had recently changed his views on the Espionage Act, especially the Sedition Act, and its relationship with free speech, based on his conversations with Zechariah Chafee and other academics. He argued that the First Amendment left no room for the government suppression of dangerous ideas, except where a threat was imminent. The Majority Opinion had held instead that the First Amendment left the common law rule of seditious libel intact. Holmes felt that the founders' expansion of free speech was "an experiment, as all life is an experiment" and he opined that a twenty year sentence against the defendants was an unconstitutional punishment for their beliefs. Holmes wrote:
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition...But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas.
See also
- List of United States Supreme Court cases, volume 250
- Schenck v. United States, 249 U.S. 47 (1919)
- Whitney v. California, 274 U.S. 357 (1927)
- Dennis v. United States, 341 U.S. 494 (1951)
- Brandenburg v. Ohio, 395 U.S. 444 (1969)
Research Resources
Further reading
- Chafee, Zechariah (1919). "Freedom of Speech in Wartime". Harvard Law Review (Harvard Law Review, Vol. 32, No. 8) 32 (8): 932–973. doi:10.2307/1327107. JSTOR 1327107.
- Polenberg, Richard (1999). Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. Ithaca: Cornell University Press. ISBN 0-8014-8618-1.
- Pollock, S. F. (1920). "Abrams v. United States". Law Quarterly Review 36: 334. ISSN 0023933X.
- Smith, Stephen A. (2003). "Schenck v. United States and Abrams v. United States". In Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 20–35. ISBN 0-8173-1301-X.
References
External links
Works related to Abrams v. United States at Wikisource- Full text of the decision courtesy of Findlaw.com
- Case brief: Quimbee
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