Abrams v. United States

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