Schenck and Abrams Cases

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Schenck and Abrams Cases (1919).Under the 1917 Espionage Act, Charles T. Schenck, a high official in the Socialist Party of America, was arrested for urging resistance to the draft. His pamphlet, sent to draftees, condemned conscription as despotic and unconstitutional. In sustaining Schenck's conviction, Justice Oliver Wendell Holmes, Jr., based his standard for expression on the common law rule of proximate causation. His “clear and present danger” test became the starting point for subsequent free speech cases until the 1960s. Critics, however, deplored the subjectivity of the rule and Holmes's insensitivity to its larger implications for free speech.

The subsequent Abrams case, brought under the 1918 Sedition Act, involved the trial of an anarchist Russian immigrant, Jacob Abrams, and his supporters for distributing pamphlets, mainly in Yiddish, calling for a general strike to protest the presence of U.S. troops in Siberia during the Russian Revolution. The Supreme Court sustained conviction following a “bad tendency” test, but Holmes, responding to his critics, dissented. He saw no clear and present danger, but he also took the occasion to argue that free speech served broad social purposes and that the national interest would suffer more from restricting speech, however controversial, than from allowing it to be injected into the marketplace of ideas.
[See also Espionage and Sedition Acts of World War I; Supreme Court, War, and the Military.]

Bibliography

Paul L. Murphy , World War I and the Origin of Civil Liberties in the United States, 1979.
Richard Polenberg , Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech, 1987.

Paul L. Murphy