More than two thousand Americans were arrested and
convicted during the World War I era under provisions of
the 1917 Espionage Act and its 1918 Sedition Act amendments. The courts were unwilling to accept the argument
that the First Amendment protected speech that challenged
the United States’ participation in, or prosecution of the
war with Germany. The dissent by Supreme Court Justices
Oliver Wendell Holmes and Louis Brandeis in the Abrams
case marked a significant step in the expansion of freedom
of speech.
Justice Holmes created the clear and present danger
test in March 1919 in Schenck v. United States in which he
wrote that challenging the government during war time was
analogous to shouting fire in a theater and causing a panic.
Under such circumstances, Holmes wrote, speech could not
be protected. But by the next October, Holmes was ready
in Abrams v. United States to clarify the meaning of the clear and present danger test in what has become one of
the most powerful rationales for freedom of expression
voiced by the Supreme Court. Based upon the principle that
a public marketplace of ideas is a keystone of democratic
government, Holmes wrote that only the “present danger
of immediate evil or an intent to bring it about” can justify
limits on the expression of opinion. Holmes did not believe
Jacob Abrams and his four co-defendants had crossed that
dangerous threshold.
The defendants were Russian-born Jews who immigrated to the United States to escape the Czar’s antiSemitic pogroms. Claiming loyalty to the United States,
they believed that when an American military force
arrived in northern Russian in 1918, it was to crush the
Russian revolutionaries who had overthrown the Czar.
The actual motive for intervention has never been clear.
The revolutionaries had signed a peace treaty in 1917 with
Germany when that country was at war with the United
States.
Abrams and the others wrote and printed two leaflets.
They distributed them from the windows of buildings in
New York City. One circular said that President Woodrow
Wilson’s “cowardly silence” about sending the U.S. military into Russia was the work of a “plutocratic gang” in
Washington, D.C., and called for support of workers in Russian. The second leaflet was written in Yiddish and called
on readers to engage in a general strike.
The defendants received prison sentences ranging from
three to twenty years. By a vote of 7–2, the Supreme Court
upheld the convictions under Sedition Act prohibitions
against conspiracy to “incite, provoke or encourage resistance to the United States,” or to “unlawfully and willfully,
by utterance, writing, printing and publication, to urge,
incite and advocate curtailment of production of things and
products, to wit, ordnance and ammunition, necessary and
essential to the prosecution of the war.”
Justices Holmes and Brandeis dissented. Holmes
wrote that “when men have realized that time has upset
many fighting faiths, they may come to believe … 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.”
Holmes wrote that the Constitution required the nation to
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.” Although Holmes and Brandeis were in the minority at
the time, the marketplace theory has become well accepted
constitutional doctrine. “Only the emergency that makes it
immediately dangerous to leave the correction of evil counsels to time,” Holmes concluded, “warrants making any
exception to the sweeping command, ‘Congress shall make
no law abridging the freedom of speech.’”
Further Reading
Abrams v. United States 250 U.S. 616 (1919).
Polenburg, Richard. Fighting Faiths: The Abrams Case, the
Supreme Court, and Free Speech. Ithaca, NY: Cornell University Press, 1988.
Schenck v. United States 249 U.S. 47 (1919).
Stone, Geoffrey R. Perilous Times: Free Speech in Wartime. New
York: W.W. Norton & Co., 2004.
White, Edward G. Justice Oliver Wendell Holmes: Law and the
Inner Self. New York: Oxford University Press, 1993.
Jeremy Cohen