ABRAMS V. UNITED STATES

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 judi-
cial 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 pro-
fessed 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. 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 are 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-presentdanger
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 antiradical
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 clearand-
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.

FURTHER READINGS
Blasi, Vincent. 1997. “Reading Holmes through the Lens of
Schauer: The Abrams Dissent.”Notre Dame Law Review
72 (July).
Fagan, James F., Jr. 1992. “Abrams v. United States: Remembering
the Authors of Both Opinions.” Touro Law
Review 8 (winter).
Polenberg, Richard. 1989. Fighting Faiths: The Abrams Case,
the Supreme Court, and Free Speech. New York: Penguin.

CROSS-REFERENCES
American Civil Liberties Union; Constitutional Amendment;
Debs, Eugene Victor; Due Process of Law; Fourteenth
Amendment; Privacy.