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SUPREME COURT HISTORY
Law, Power & Personality
Famous Dissents
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Photo of a 1914 anarchist rally in New York's Union Square.
During World War I, anti-war activist and anarachist Jacob Abrams was convicted under the Sedition Act of 1918 for distributing socialist pamphlets. The Supreme Court upheld the conviction over a dissent from Justices Holmes and Brandeis. Above, a 1914 anarchist rally in New York's Union Square.

Reproduction courtesy of the Library of Congress
Abrams v. United States (1919)

In the waning months of World War I, in August 1918, a group of Russian immigrants was arrested in New York City and charged with violating the Sedition Act of 1918, which made it a crime to "willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States" or to "willfully urge, incite, or advocate any curtailment of the production" of the things "necessary or essential to the prosecution of the war." Their offense: distributing pamphlets that criticized the U.S. military's recent deployment of troops to Russia and that, in one case, advocated a general strike in factories producing military goods. A few months later, the group -- which included a young anarchist named Jacob Abrams -- was tried, convicted, and sentenced to prison terms of 15 to 20 years. Their convictions were hardly unique. Ironically, during the "war to make the world safe for democracy" the federal government enacted some of the most severe restrictions on civil liberties at home in the country's history -- in 1919 and 1920, the attorney general reported 877 convictions under the 1918 Sedition Act and other similar federal laws.

In March 1919, while Abrams and his compatriots were appealing their case, the Supreme Court heard two other First Amendment cases dealing with the convictions of antiwar socialists -- Schenck v. United States and Debs v. United States. In both cases the Court unanimously upheld the defendants' convictions under the 1917 Espionage Act and the 1918 Sedition Act, respectively -- and in both cases Justice Oliver Wendell Holmes penned the Court's decisions. In Schenk, Holmes devised a legal test for governmental restrictions on free speech. The deciding factor, he wrote, is whether the speech in question is "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."

In the Abrams decision, issued in November 1919, the Court voted 7-2 to uphold the convictions of Abrams and the other defendants. Writing for the majority, Justice John H. Clarke closely mirrored Holmes's reasoning in the first two cases, holding that "the language of these circulars was obviously intended to provoke and encourage resistance to the United States in the war" -- and that the defendants' actions had therefore passed the "clear and present danger" threshold.

Over the summer of 1919, however, Holmes had undergone a serious change of heart regarding the permissibility of governmental restrictions on the First Amendment's guarantee of the right to free speech. Long held in special esteem by many of the nation's most prominent legal scholars, Holmes had been surprised by the negative reaction many had had to his opinions in Schenk and Debs. In the June 1919 issue of the HARVARD LAW REVIEW, Professor Zechariah Chaffee had published an article entitled "Freedom of Speech in War Time," which advocated a more libertarian reading of the First Amendment and appeared to be written as a personal entreaty to Holmes. Holmes not only read the article but also met with Chaffee personally, and spent time over the summer engaging with several other libertarian scholars and jurists, among them Learned Hand and Ernst Freund. By the time the Abrams case reached the Court in the fall, Holmes was prepared to rethink his earlier position.

Joined by Justice Louis Brandeis, Holmes issued a dissent that remains famous as one of the Court's most eloquent defenses of free speech. Although he maintained that his opinions in the Schenk and Debs cases had been correct, Holmes modified his standard, stating that the government could constitutionally restrict and punish "speech that produces or is intended to produce clear and imminent danger that it will bring about forthwith ... substantive evils." The difference in phrasing was more than semantic. By substituting "imminent" for present and adding the qualifier "forthwith," Holmes was signaling a much stricter standard of judicial scrutiny: only when a direct and immediate connection between an act of speech and a subsequent crime existed could the speech itself be criminalized. Holmes dismissed the possibility that "the surreptitious publishing of a silly leaflet by an unknown man ... would present any immediate danger," and argued for the social benefits of unrestrained free speech. "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," he wrote. "That at any rate is the theory of our Constitution."

Although the Court never adopted Holmes's more rigorous standard, his dissent in Abrams remains widely regarded as a defining moment in the movement towards a modern construction of the right to free expression. The Court would continue to use various reformulations of Holmes's earlier "clear and present danger" test until 1969, when it established a direct incitement standard in Brandenburg v. Ohio.

AUTHOR'S BIO
Toni Konkoly is a production assistant at Thirteen/WNET.

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