Abrams v. United States: Supreme Court Case, Arguments, Impact

In Abrams v. United States (1919), the U.S. Supreme Court reinforced the “clear and present danger” test for restricting freedom of speech, previously established in Schenck v. United States, and upheld several convictions under the Sedition Act of 1918 (an amendment to the Espionage Act of 1917). Abrams is best known for its famous dissent, written by Justice Oliver Wendell Holmes, who had established the “clear and present danger” test just eight months prior.

Facts of the Case

On August 22, 1918, just before 8 a.m., a group of men loitering on the corner of Houston and Crosby in Lower Manhattan looked up to see papers falling from a window above. The leaflets floated down, eventually resting by their feet. Out of curiosity, several men picked up the papers and began to read. Some of them were in English and others were in Yiddish. The title of one of the leaflets read, “The Hypocrisy of the United States and her Allies.”

The flyers denounced capitalism and declared then-President Woodrow Wilson a hypocrite for sending troops to Russia. More specifically, the leaflets called for a worker’s revolution, encouraging munitions workers to rise up against their government.

Police arrested Hyman Rosansky, the man responsible for tossing the leaflets out of the fourth-floor window. With Rosansky's cooperation, they arrested four other people in connection to printing and distributing the flyers. They were charged with four counts under the Sedition Act of 1918:

1. Unlawfully utter, print, write, and publish "disloyal, scurrilous and abusive language about the form of Government of the United States”
2. Use language “intended to bring the form of Government of the United States into contempt, scorn, contumely and disrepute"
3. Use words “intended to incite, provoke and encourage resistance to the United States in said war”
4. Conspire "when the United States was at war with the Imperial German Government, 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."

All five defendants were found guilty at trial and appealed the judgment. Prior to hearing their appeal, the Supreme Court heard two similar cases: Schenck v. United States and Deb v. United States. Both cases questioned whether anti-war speech could be protected by the First Amendment. The Court upheld convictions in both cases under the 1917 Espionage Act and the 1918 Sedition Act. In Schenck v. United States, Justice Oliver Wendell Holmes wrote that governmental restrictions on speech could be legitimate if the speech was, “of such a nature as to create a clear and present danger that [it] will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."

Constitutional Question

Does the First Amendment protect speech designed to undermine the government at the height of World War I? Do sedition convictions under the Espionage Act of 1917 violate First Amendment protections?

Arguments

The defendants argued that the Espionage Act of 1917 itself was unconstitutional, contending that it violated Freedom of Speech under the First Amendment. Additionally, the attorneys argued that, even if the Court were to find that the Espionage Act was valid, the defendants had not violated it. Their conviction was not based on solid evidence. The prosecution could not prove that the distribution of the leaflets created any “clear and present danger” of evil towards the United States. The attorneys advocated for the Supreme Court to overturn the conviction and uphold the defendants’ rights to Freedom of Speech under the First Amendment.

On the other hand, the government argued that the First Amendment does not protect speech meant to undermine U.S. war efforts. The defendants had clearly intended to interfere with the U.S.’s war with Germany. They had intended to incite a revolt, the attorneys argued. Intent was enough to lawfully convict under the Espionage Act, the attorneys suggested.

Majority Opinion

Justice John Hessin Clarke delivered the 7-2 decision, upholding the convictions. The Court applied the “clear and present danger” test, first established in Schenck v. United States (1919). In that case, the Supreme Court upheld a conviction under the Espionage Act of 1917 on the basis that the First Amendment does not protect speech that poses a “clear and present danger” of “evil” that Congress may otherwise have the power to prevent.

The defendants in Abrams v. United States intended to “provoke and encourage resistance” by distributing the leaflets, Justice Clarke argued. They encouraged a general strike throughout munitions factories. If such a strike were to occur, it would directly impact the war effort, the majority opined. Referring to the defendants as “alien anarchists,” Justice Clarke wrote, “Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce.”

Dissenting Opinion

Justice Oliver Wendell Holmes authored the dissent which would later be regarded as one of the most “powerful” dissents in Supreme Court history. Justice Louis D. Brandeis joined him in the dissent.

Justice Holmes argued that the Court had improperly applied the test he had formulated in Schenck v. United States. In evaluating the pamphlets the majority had failed to take into account to "success" of the "speech." The government may use legislation like the Espionage Act of 1917 to restrict "speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith ... substantive evils." Justice Holmes could not see how a pamphlet criticizing the government's impact on the Russian Revolution could "present any immediate danger" to the United States. “Congress certainly cannot forbid all effort to change the mind of the country,” Justice Holmes wrote.

In his description of the Schenck test, Justice Holmes substituted “present” for “imminent.” By slightly altering the language, he signaled that the test requires scrutiny from the courts. There must be direct evidence tying the speech to a subsequent crime in order for the speech to be criminalized, he argued. The leaflets created by the defendants could not be tied to efforts or intent to “hinder the United States in the prosecution of war.”

Taking a broader view on free speech, Justice Holmes advocated for a marketplace of ideas where the truth of one concept could be tested against others.

Justice Holmes wrote:

“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.” 

Impact

There are many theories as to why Holmes changed his opinion on the constitutionality of restricting speech under the Espionage Act of 1917. Some argue that he felt pressure from legal scholars who criticized his Schenck decision for its broadness. Holmes even personally met with one of his critics prior to writing his dissent. He met with Professor Zechariah Chaffee, who wrote “Freedom of Speech in War Time,” an article that promoted a libertarian reading of the First Amendment. Regardless of why Justice Holmes altered his viewpoint, his dissent laid the groundwork for future cases which imposed stricter scrutiny in terms of freedom of speech.

Holmes’ “clear and present danger test” remained in use until Brandenburg v. Ohio, when the Court instituted the “imminent danger” test.

Sources

• Schenck v. United States, 249 U.S. 47 (1919).
• Abrams v. United States, 250 U.S. 616 (1919).
• Chafee, Zechariah. “A Contemporary State Trial. The United States versus Jacob Abrams Et Als.” Harvard Law Review, vol. 35, no. 1, 1921, p. 9., doi:10.2307/1329186.
• Cohen, Andrew. “The Most Powerful Dissent in American History.” The Atlantic, Atlantic Media Company, 10 Aug. 2013, www.theatlantic.com/national/archive/2013/08/the-most-powerful-dissent-in-american-history/278503/.