Facts of the Case The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building. 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. 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.

Question Presented Do the amendments to the Espionage Act or the application of those amendments in this case violate the free speech clause of the First Amendment?

Conclusion No and no. The act's amendments are constitutional and the defendants' convictions are affirmed. In Clarke's majority opinion, the leaflets are an appeal to violent revolution, a call for a general strike, and an attempt to curtail production of munitions. The leaflets had a tendency to encourage war resistance and to curtail war production. Holmes and Brandeis dissented on narrow ground: the necessary intent had not been shown. These views were to become a classic libertarian pronouncement.

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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, Charles Evans Hughes, Willis Van Devanter, Joseph Rucker Lamar, Mahlon Pitney, James Clark McReynolds
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. Image File history File links Seal_of_the_United_States_Supreme_Court. ... The Supreme Court of the United States is the highest judicial body in the United States and leads the judicial branch of the United States federal government. ... Edward Douglass White (November 3, 1845 – May 19, 1921), American politician and jurist, was a United States Senator, Associate Justice of the Supreme Court of the United States and the ninth Chief Justice of the United States. ... Joseph McKenna (August 10, 1843–November 21, 1926) was an American politician who served in all three branches of the U.S. federal government, as a member of the U.S. House of Representatives, as U.S. Attorney General and as an Associate Justice of the Supreme Court. ... Oliver Wendell Holmes, Jr. ... Categories: People stubs | U.S. Supreme Court justices | Judges of the U.S. Court of Appeals for the Sixth Circuit | U.S. Secretaries of State | Spanish-American War people | American lawyers | 1849 births | 1923 deaths ... Charles Evans Hughes (April 11, 1862 – August 27, 1948) was Governor of New York, United States Secretary of State, Associate Justice and Chief Justice of the United States. ... Willis Van Devanter (April 17, 1859 - February 8, 1941), associate justice of the United States Supreme Court, January 3, 1911 to June 2, 1937. ... Joseph Rucker Lamar (October 15, 1857 – January 2, 1916) was an Associate Justice of the United States Supreme Court appointed by President William Howard Taft. ... Categories: People stubs | U.S. Supreme Court justices | New Jersey Supreme Court justices | New Jersey State Senators | Members of the U.S. House of Representatives | 1858 births | 1924 deaths ... Justice McReynolds, c. ... The First Amendment to the United States Constitution is a part of the United States Bill of Rights. ... // Case citation is the system used in common law countries such as the United States, England and Wales, Canada, New Zealand, Australia and India to uniquely identify the location of past court cases in special series of books called reporters or law reports. ... 1919 (MCMXIX) was a common year starting on Wednesday (see link for calendar). ... The Supreme Court Building, Washington, D.C. The Supreme Court Building, Washington, D.C., (large image) The Supreme Court of the United States, located in Washington, D.C., is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States... The Espionage Act of 1917 was a United States federal law passed shortly after entering World War I, which made it a crime for a person to convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the... This law-related article does not cite its references or sources. ... Civil rights or positive rights are those legal rights retained by citizens and protected by the government. ... The First Amendment to the United States Constitution is a part of the United States Bill of Rights. ... Oliver Wendell Holmes, Jr. ... Louis D. Brandeis Louis Dembitz Brandeis (November 13, 1856 – October 3, 1941) was an important American litigator, Supreme Court Justice, advocate of privacy, and developer of the Brandeis Brief. ... Combatants Republic of Vietnam United States Republic of Korea Thailand Australia New Zealand The Philippines National Front for the Liberation of South Vietnam Democratic Republic of Vietnam People’s Republic of China Democratic Peoples Republic of Korea Strength US 1,000,000 South Korea 300,000 Australia 48,000... Holding Ohios criminal syndicalism statute violated the First Amendment, as applied to the state through the Fourteenth, because it broadly prohibited the mere advocacy of violence rather than the constitutionally unprotected incitement to imminent lawless action. ...

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. Holding Defendants criticism of the draft was not protected by the First Amendment, because it created a clear and present danger to the enlistment and recruiting practices of the U.S. armed forces during a state of war. ... Clear and present danger is a term used in the case Schenck v. ...

What account did Holmes give for this switch? “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.

The opinion speaks about when and how speech should be protected. Holmes says that when someone is certain that his opinion is right, they tend to translate that into law and force it onto others people. To allow opposition just means you think that it is irrelevant and not a threat. But in the long run, people realize that “time has upset many fighting faiths”. The marketplace is the best way to develop new ideas. Skepticism, no absolute permanent truth – those are the founding blocks of constitutional law. However, critics point out that skepticism tends to be self undermining. Also, it can easily become nihilism – nothing matters! If nothing matters, why protect anything?

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