Abrams v. United States

In Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L. Ed. 1173 (1919), the U.S. Supreme Court applied the clear and present danger test in upholding the conviction of five anti-war protestors, who had been charged with Sedition for distributing pamphlets criticizing President Woodrow Wilson during World War I. However, the case is remembered more for the lone dissenting opinion written by Justice Oliver Wendell Holmes Jr., architect of the original clear-and-present-danger test just eight months earlier. Holmes’s dissent argued that freedom of speech cases analyzed under the First Amendment to the U.S Constitution must be subjected to a heightened level of judicial scrutiny before legislation abridging free expression could be upheld, a level of scrutiny that was eventually adopted by a majority of the Court for the balance of the twentieth century.

The case began on August 23, 1918, when Jacob Abrams, a Russian immigrant, and a professed anarchist, was arrested in New York City with four others. Abrams and his comrades admitted to writing, printing, and distributing two sets of leaflets, one in English and one in Yiddish, assailing President Woodrow Wilson as a “coward” and a “hypocrite” for sending troops to fight the Soviet Union during World War I. The Yiddish leaflet called for a general strike among all workers to protest against Wilson’s policy.

Abrams and the other defendants were charged with violating the Sedition Act. This act made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive” language about the form of government in the United States or language that was intended to bring that form of government “into contempt, scorn, contumely, and disrepute,” or language that was “intended to incite, provoke, and encourage resistance to the” U.S. war effort. The act also made it illegal to “willfully urge, incite, or advocate [the] curtailment” of manufacturing and production efforts “necessary and essential to the prosecution of the war.”

While the five defendants in Abrams were released on bail during March 1919, the Supreme Court issued two decisions upholding the convictions of several other antiwar protestors. In the first case, the Court affirmed the convictions under the 1917 Espionage Act. Schenck v. united states, 249 U.S. 47, 39 S.Ct. 247, 63 L. Ed. 470 (1919). In the other case, the Court affirmed the convictions under the 1918 Sedition Act. Debs v. the United States, 249 U.S. 211, 39 S.Ct. 252, 63 L. Ed. 566 (1919). Both decisions were unanimous, and both decisions were written by Justice Holmes.

In Schenck, Holmes articulated what has become known as the “clear-and-present danger” doctrine, a doctrine by which the constitutionality of laws regulating subversive expression is evaluated in light of the First Amendment’s guarantee of free speech. “The question in every case,” Holmes wrote in Schenck, “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. It is a question of proximity and degree.”

In Schenck Holmes concluded that the government did not run afoul of the Free Speech Clause in suppressing the protestors’ antiwar expression, because Holmes said that when “a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no court could regard them as protected by any constitutional right.” Nor was Holmes’s opinion in Schenck influenced by the possibility that the antiwar protests had no practical effect in changing the minds of passersby. “If the act (speaking, or circulating a paper), its tendency and the intent with which it is done are the same,” Holmes reasoned in Schenck, “we perceive no ground for saying that success alone warrants making the act a crime.”

Writing for the majority in Abrams, Justice john h. Clarke echoed Holmes’s reasoning from Schenck. The purpose of the pamphlets written by Abrams and his comrades was to “excite” riots, sedition, and disaffection with the war, Clarke wrote. Distributed at a time when World War I was at a “supreme crisis,” Clarke continued, the pamphlets’ call for a general strike among munitions workers would necessarily have hindered the U.S. war effort. As a result, Clarke concluded that Abrams’s pamphlets created a clear and present danger of “defeating the military plans of the government in Europe.”

Holmes dissented from the Abrams’s majority’s application of the same clear and present danger test Holmes himself had formulated just eight months earlier. Holmes still agreed that the government’s power to suppress speech is greater in times of war than in times of peace, “because war opens dangers that do not exist at other times.” But “nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so,” Holmes cautioned.

“To allow opposition by speech,” Holmes now thought, “seems to indicate that you think the speech impotent, as when a man says that he has squared the circle.” A Civil War veteran who had joined the Union Army in large part due to his support for the abolition movement, Holmes reminded readers that “time has upset many fighting faiths,” and, accordingly, “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.”

Holmes then moved to his application of the clear-and-present-danger test. In civil law, Holmes observed that defendants may be held liable for all the foreseeable consequences of their negligent behavior. Not so in the criminal law, Holmes said, where a crime is not normally committed unless done “with intent to produce a consequence [and] that consequence is the aim of the deed.” But intent alone is not the only factor critical to a court’s First Amendment analysis, Holmes observed. Instead, a court must also evaluate the “success” of the speech “upon others.” Unless the speech creates a “present danger of immediate evil,” Holmes argued that Congress cannot punish the speaker without violating the federal constitution. In concluding that the “silly” leaflets distributed by Abrams and his co-defendants created no clear and present danger, Holmes said 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.”

Holmes’s opinion in Abrams cemented his reputation for being one of the Supreme Court’s exceptional writers of persuasive dissenting opinions. It also laid the building blocks for his reputation as a great defender of civil liberties. But most importantly, Holmes’s dissenting opinion in Abrams changed the course of First Amendment law for the remainder of the twentieth century. In Schenck, the clear-and-present-danger test had been applied with minimal scrutiny as to whether the antiwar pamphlets in question were likely to have any practical impact on those who might read them. Holmes’s opinion in Schenck focused almost entirely on the gravity of the dangers created by the pamphlets, without paying much attention to whether those dangers were likely to result.

By contrast, Holmes’s dissenting opinion in Abrams more carefully scrutinized the competing factors at work in evaluating whether the subversive speech sought to be punished does in fact create a clear and present danger of harm that Congress may prohibit. Holmes contended that the Abrams’s majority opinion should have more closely examined the intent of the pamphleteers. Additionally, Holmes believed that the majority opinion should not only have attempted to determine whether the pamphlets would have any effect on readers but also urged the majority to allow the defendants to go unpunished unless by distributing the pamphlets the defendants had created a danger that was both clear and immediate.

Supreme Court scholars have spent much time trying to explain why Holmes modified his view of the Free Speech Clause in the eight months that separated his majority opinion in Schenck and his dissenting opinion in Abrams. There is evidence to suggest that Holmes was influenced by the anti-Communist and anti-radical hysteria that was sweeping much of the nation during those months, and the government–instituted repression of radicals that resulted. There is also evidence indicating that Holmes was influenced by correspondence he received from various acquaintances, including Harvard Law School professor Zechariah Chafee, federal district judge Learned Hand, and political theorist Harold J. Laski, all of whom praised Holmes for articulating the clear-and-present-danger test but also encouraged the associate justice to apply it with more exacting scrutiny.

Some 50 years after Holmes first enunciated the clear-and-present-danger test in Schenck, the majority of the Supreme Court reformulated the doctrine in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969). In Brandenburg, the Court reversed the conviction of a Ku Klux Klan leader under a state statute, Ohio Rev. Code Ann. § 2923.13, prohibiting advocacy of crime and violence as a necessary means to accomplish political reform. The Court held that a state could not forbid or proscribe advocacy of the use of force, except where such advocacy is directed toward producing imminent lawless action and is likely to incite or produce such action. Though the Court’s opinion fails to use the phrase “clear and present danger,” many Constitutional Law scholars have seen Brandenburg as a return to the Holmes immediacy test first set forth in Abrams.

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