Supreme Court decision
By: Oliver Wendell Holmes Jr.
Date: November 10, 1919
Source: Holmes, Oliver Wendell, Jr. Abrams v. U.S., 250 U.S. 616 (1919). Available online at http://caselaw.lp.findlaw.com/us/250/616.html; website home page: http://caselaw.lp.findlaw.com (accessed January 23, 2003).
About the Author: Oliver Wendell Holmes Jr. (1841–1935) served in the Union army in the Civil War (1861–1865) from 1861 to 1864. He joined the Massachusetts Supreme Court as an associate justice in 1883, rising to chief justice in 1899. In 1902, President Theodore Roosevelt (served 1901–1909) appointed him associate justice of the U.S. Supreme Court, where he served until he resigned in 1932 at age ninety-one.
Public opinion was deeply divided over U.S. participation in World War I. In response to this dissent, Congress passed a number of measures. These included the Draft Act, which forbade interfering with the draft; the Espionage Act, which made espionage that interfered with the war effort a crime; and the Sedition Act (an amendment to the Espionage Act), which made illegal false statements that interfered with the war effort. Many people were convicted under these laws, and the U.S. Supreme Court unanimously upheld convictions in three Espionage Act cases in early 1919. In Schenck v. U.S., for example, in a case involving the distribution of flyers urging resistance to the draft, the Court declared that free speech could be restricted when a statement posed a "clear and present danger."
Other international events had implications for free speech rights during this time. Russia had undergone two revolutions, first by anticzarist forces, then by communists. The United States, like many other countries, opposed communism and sent forces to defeat them. In response, Jacob Abrams, Hyman Lachowsky, Samuel Lipman, Jacob Schwartz, and Mollie Steimer, anarchists and socialists who had all immigrated to the United States from Russia in the early twentieth century, protested U.S. involvement in Russian affairs by printing a brochure calling upon all "workers of the world" to "awake" in a general protest strike. After they were arrested for distributing these pamphlets, confessions were beaten out of some and they were indicted for violating the Sedition Act. Before trial, Jacob Schwartz died of a heart condition aggravated by police brutality. The others were tried and convicted in federal court; Abrams, Lachowsky, and Lipman were sentenced to twenty years in prison, while Steimer was given a fifteen-year sentence. They were released on bail pending an appeal to the Supreme Court.
The Supreme Court majority upheld the convictions. Abrams, Lachowsky, and Lipman were imprisoned in the Atlanta Federal Penitentiary, while Steimer went to a state prison in Jefferson City, Missouri. All served about a year and ten months in prison before their sentences were commuted and they were deported to Russia. Holmes's dissent in Abrams was an early indication that the belief that the government should be allowed to enact sweeping restrictions on free speech was not universal. The dissent led to an expansion of free speech's definition in later years. In 1925, the Supreme Court extended the First Amendment to protect some speech against state action. In the 1960s, free speech was widely expanded when the Warren Court ruled that speech could not be banned unless it was aimed to produce "imminent lawless action" and that action was likely to occur.
Primary Source: Abrams v. United States [excerpt]
SYNOPSIS: In his dissent, Holmes defends the government's right to curtail speech in wartime, but he also says Congress cannot forbid all dissident speech. He argues that the pamphlet could not possibly have produced a revolution. Moreover, as the defendants' sympathies were not with Germany but were opposed to American intervention in Russia, Holmes does not see them as having violated the Espionage and Sedition Acts.
Mr. Justice Holmes dissenting.
This indictment is founded wholly upon the publication of two leaflets which I shall describe in a moment.…No argument seems to be necessary to show that these pronunciamentos in no way attack the form of government of the United States, or that they do not support either of the first two counts. What little I have to say about the third count may be postponed until I have considered the fourth. With regard to that it seems too plain to be denied that the suggestion to workers in the ammunition factories that they are producing bullets to murder their dearest, and the further advocacy of a general strike, both in the second leaflet, do urge curtailment of production of things necessary to the prosecution of the war within the meaning of the Act of May 16, 1918. But to make the conduct criminal that statute requires that it should be "with intent by such curtailment to cripple or hinder the United States in the prosecution of the war." It seems to me that no such intent is proved.…
It seems to me that this statute must be taken to use its words in a strict and accurate sense. They would be absurd in any other. A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success, yet even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prosecution of the war, no one would hold such conduct a crime. I admit that my illustration does not answer all that might be said but it is enough to show what I think and to let me pass to a more important aspect of the case. I refer to the First Amendment to the Constitution that Congress shall make no law abridging the freedom of speech.
I never have seen any reason to doubt that the questions of law that alone were before this Court in the Cases of Schenck, Frohwerk, and Debs, were rightly decided. I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times.
But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now 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. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger and at any rate would have the quality of an attempt.… It is necessary where the success of the attempt depends upon others because if that intent is not present the actor's aim may be accomplished without bringing about the evils sought to be checked. An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged.
I do not see how anyone can find the intent required by the statute in any of the defendant's words. The second leaflet is the only one that affords even a foundation for the charge, and there, without invoking the hatred of German militarism expressed in the former one, it is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against the popular government—not to impede the United States in the war that it was carrying on. To say that two phrases taken literally might import a suggestion of conduct that would have interference with the war as an indirect and probably undesired effect seems to me by no means enough to show an attempt to produce that effect.…
In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow—a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court.
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe 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. 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. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law abridging the freedom of speech." Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.
Chafee, Zechariah. Free Speech in the United States. Cambridge, Mass.: Harvard University Press, 1946.
Polenberg, Richard. Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. New York: Viking, 1987.
Political Prisoners Defense and Relief Committee. Abrams Sentenced to Twenty Years Prison. New York: Political Prisoners Defense and Relief Committee, 1919.
Steimer, Mollie, Simon Fleshin, and Abe Bluestein. Fighters for Anarchism: Mollie Steimer and Senya Fleshin: A Memorial Volume. London: Libertarian Publications Group, 1983.
Linder, Doug. "Exploring Constitutional Conflicts: The 'Clear and Present Danger' Test. Available online at http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/cle... ; website home page: http://www.law.umkc.edu (accessed January 23, 2003).
Urofsky, Melvin I. "Introduction to Justice Holmes' Dissenting Opinion on the Abrams v. United States Case." Basic Readings in Democracy. Available online at website home page: http://www./usinfo.state.gov (accessed January 23, 2003).