Abrams v. United States

Abrams v. United States (1919).This Supreme Court case from the World War I era involved Russian‐born anarchists convicted under the 1918 Sedition Act of distributing leaflets denouncing U.S. military intervention against Russia's new Bolshevik government. Writing for the majority, Justice John Clarke followed recent rulings by Justice Oliver Wendell Holmes Jr. in Schenck v. United States and Debs v. United States upholding the conviction of socialists for making antiwar statements on the grounds that such statements posed a “clear and present danger” in wartime America. The Abrams case involved the same principle, Clarke held, because the anarchists' leaflets created a “clear and present danger” of causing “the substantive evils that Congress has a right to prevent.”

Justice Holmes, joined by Justice Louis Brandeis, dissented. Although Holmes denied that he was shifting ground, recent scholarship has shown that in his Abrams dissent, Holmes—stung by criticism from libertarian friends such as Zechariah Chafee of Harvard Law School and Harold J. Laski—did indeed seek to rework the Schenck and Debs test. In those cases, Holmes had linked the “clear and present danger” test to the broader claim that speech need not produce action in order to carry criminal liability. But in Abrams, he narrowed the “clear and present danger” test to make it more protective of First Amendment, free‐speech rights in hopes that, first, the courts would adopt it as a test of fundamental constitutional law and, second, that it might protect speech, such as that of the Abrams defendants, which had little likelihood of producing dangerous consequences. The Abrams dissent made Holmes a libertarian hero and propelled his “clear and present danger” test to the center of First Amendment discourse.
See also Bill of Rights; Censorship; Civil Liberties; Sedition; Socialist Party of America].

Bibliography

Richard Polenberg , Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech, 1987.
G. Edward White , Justice Oliver Wendell Holmes: Law and the Inner Self, 1993.

Norman L. Rosenberg