Abrams v. United States

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Abrams v. United States
Seal of the United States Supreme Court.svg
Argued October 21–22, 1919
Decided November 10, 1919
Full case name Jacob Abrams, et al. v. United States
Citations 250 U.S. 616 (more)
40 S. Ct. 17; 63 L. Ed. 1173; 1919 U.S. LEXIS 1784
Prior history Defendants convicted, U.S. District Court for the Southern District of New York
Subsequent history None
Defendants' criticism of U.S. involvement in World War I was not protected by the First Amendment, because they advocated a strike in munitions production and the violent overthrow of the government.
Court membership
Case opinions
Majority Clarke, joined by White, McKenna, Day, Van Devanter, Pitney, McReynolds
Dissent Holmes, joined by Brandeis
Laws applied
U.S. Const. amend. I; 50 U.S.C. § 33 (1917)

Abrams v. United States, 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the Sedition Act of 1918.

The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building in New York City. One leaflet, signed "revolutionists", denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution. It advocated the cessation of the production of weapons to be used against Soviet Russia.

The defendants were charged and convicted of with inciting resistance to the war effort and urging curtailment of production of essential war material. They were sentenced to 10 and 20 years in prison. The Supreme Court ruled, 7–2, that the defendants' freedom of speech, protected by the First Amendment, was not violated. Justice John Hessin Clarke in an opinion for the majority held that the defendants' intent to hinder war production could be inferred from their words, and that Congress had determined such expressions posed an imminent danger. Their conviction was accordingly warranted under the "clear-and-present-danger" standard, derived from the common law and announced in Schenck v. United States and companion cases earlier in 1919. Opinions for a unanimous Court in those cases were written by Justice Oliver Wendell Holmes. In the Abrams case, however, Holmes dissented, rejecting the argument that the defendants' leaflets posed the "clear and present danger" that was true of the defendants in Schenck. In a powerful dissenting opinion joined by Justice Louis Brandeis, he said that the Abrams defendants lacked the specific intent to interfere with the war against Germany, and that they posed no actual risk. He went on to say that even if their acts could be shown to pose a danger of a damaging war production, the draconian sentences imposed showed that they were being prosecuted, not for their speech, but for their beliefs. The majority opinion is no longer cited as a precedent. Holmes's dissent is often quoted and is taken to be authoritative.

Majority opinion[edit]

Writing for the majority, Justice John Hessin Clarke asserted that the leaflets demonstrated an intent to hinder production of war material, and could not be characterized as simple expressions of political opinion. Quoting English translations of a leaflet written in Yiddish, Clark concluded:

"This is not an attempt to bring about a change of administration by candid discussion, for no matter what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create an attempt to defeat the war plans of the government of the United States, by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war."

In answer to claim that the defendants were concerned only with United States' intervention in Russia, he asserted that the leaflets

"sufficiently show, that while the immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our government sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe."

He ruled that the leaflets call for a general strike and the curtailment of munitions production, violated the Sedition Act of 1918. The leaflets did not pose an immediate risk of obstruction of the war effort, but they had a tendency in that direction, which the Congress had forbidden in the crisis of the War.

Holmes' dissent[edit]

In his dissent, Holmes wrote that although the defendant's pamphlet called for a cessation of weapons production, it had not violated the Act of May 16, 1918. He wrote that the defendants did not have the requisite intent "to cripple or hinder the United States in the prosecution of the war" against Germany. The defendants were objecting only to the United States intervention in the Russian civil war. The defendants therefore lacked the specific intent to commit the crime of obstructing the war effort.[1]

Holmes' three earlier opinions for a unanimous Supreme Court concerned convictions under the 1917 Sedition Act, in the first of which, Schenck v. United States, he stated the famous "clear and present danger" standard: speech could be punished if it posed a clear and present danger of causing some harm that Congress had power to forbid.[2] The defendants in Schenck had mailed leaflets to men awaiting induction, urging them to resist the draft. The defendants did not deny that they intended this result. Since they could have been prosecuted for a crime if they accomplished the intended result, and there was a clear and present danger that they would, they could also be convicted of an attempt to commit the crime of obstructing the draft. The statute only applied to successful obstructions, but common-law precedents allowed prosecution in this case for an attempt. In his opinion, Holmes relied on the common law of "attempts," and concluded without much discussion that an attempt might be made by words as by other means, the First Amendment notwithstanding.

In his Abrams dissent, Holmes explained why some speech was protected by the Constitution, and explanation that was not called for in the earlier cases. Holmes did insist that the majority had departed from the standard adopted by a unanimous court that same year, since the Abrams defendants neither intended the forbidden result nor did their leaflets, written in Yiddish, threaten to cause a forbidden result. Holmes's dissent is now accepted as the better statement of the standard, but the Court's ruling that legislation could criminalize all seditious speech has also been upheld.[3]

Holmes's passionate, indignant opinion is often quoted:

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...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. . . . 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,[4]

Holmes expressed himself more fully in this dissent than in his earlier opinions for a unanimous Court concerning the value of free expression, and the reasons for which it might be regulated. In his Abrams dissent, he added this explanation of his dissent. He had not asked the Court as a whole to endorse this larger expression in the earlier cases.

Scholars have debated whether Holmes altered his views over the course of the weeks between the two sets of opinions. Holmes always maintained that he had adhered to the standard for punishing criminal attempts used in the earlier convictions, a standard based on long years as a common-law judge and scholar.[5] But, critics of his earlier "clear-and-present-danger" opinions have insisted that the Abrams dissent stands on a different footing, and is more protective. The objection may be based in part on a misunderstanding. In his dissent, Holmes first disposed of the argument that the facts in the case supported a conviction under the clear-and-present-danger standard. He then went on to say that, even if the defendants' speech could be punished as an attempted crime, even if "enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper," the sentences of ten and twenty years, followed by deportation, showed that Abrams and his friends were prosecuted, not for their dangerous acts, but for their beliefs. Holmes went on to challenge, not the Court's conclusion, but the Wilson Administration's prosecution of these defendants as an outrageous abuse of power. The marketplace of ideas is the foundation of the constitutional system, and efforts to suppress opinions by force therefore contradict a fundamental principle of the Constitution.

Holmes's friends and colleagues generally supported the decision in Schenck, but he encountered mild criticism from his young friend Learned Hand. In an article Zechariah Chafee complained that Holmes had failed in his opinions for the Court to define the contours of the privilege accorded to speech. In his Abrams dissent, Holmes expanded his statement of the common-law privilege accorded to honest expressions of opinions, on much the lines that Chafee had recommended. Scholars have claimed that Holmes was influenced by Chafee and Hand, by Brandeis, or by others. These claims are stated in numerous articles, and summarized in a book by Richard Polenberg.[6] In 1989 Sheldon Novick's first full biography of Holmes suggested that the justice had been consistent in his decisions.[7]

See also[edit]


  1. ^ Abrams v. United States, 250 U.S. 616, 626 (1919)
  2. ^ Schenck v. United States, 249 U.S. 47 (1919)
  3. ^ Thomas Healey, The Great Dissent, 2013
  4. ^ Urofsky, Melvin I., and Paul Finkelman, "Abrams v. United States (1919)." Documents of American Constitutional and Legal History, third ed. New York: Oxford University Press, 2008, pp. 666-67.
  5. ^ Sheldon M. Novick, "The Unrevised Holmes and Freedom of Expression," 1991 The Supreme Court Review, p. 303 (1992)
  6. ^ Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech, pp. 218-228 (1987)
  7. ^ Sheldon Novick, "Preface: Honorable Justice at Twenty-Five," in Honorable Justice: The Life of Oliver Wendell Holmes (1989, 2013).

Further reading[edit]

  • Chafee, Zechariah (1919). "Freedom of Speech in Wartime". Harvard Law Review (Harvard Law Review, Vol. 32, No. 8) 32 (8): 932–973. doi:10.2307/1327107. JSTOR 1327107. 
  • Polenberg, Richard (1999). Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. Ithaca: Cornell University Press. ISBN 0-8014-8618-1. 
  • Pollock, S. F. (1920). "Abrams v. United States". Law Quarterly Review 36: 334. ISSN 0023-933X. 
  • Smith, Stephen A. (2003). "Schenck v. United States and Abrams v. United States". In Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 20–35. ISBN 0-8173-1301-X. 

External links[edit]