Abrams v. United States, 250 U.S. 616 ( 1919 ), is best known for the dissenting opinion in which Justice Oliver Wendell Holmes Jr. ( 1841–1935 ) put teeth into the “clear-and-present-danger” test for free speech. Holmes had announced that test in Schenck v. United States, 249 U.S. 47 ( 1919 ), but his employment of that standard was not particularly protective of persons who opposed American entry into World War I ( 1914–1918 ). Abrams was the first instance in which any Supreme Court justice cast a vote to protect political dissent. Whether and why Holmes became more protective of speech remains controversial, but his dissent in Abrams provides the foundations for contemporary free speech doctrine.
The Supreme Court, by a 7–2 vote, sustained the conviction and sentence. The majority opinion was written by Justice John H. Clarke ( 1857–1945 ), a Woodrow Wilson ( 1856–1924 ) appointee and progressive, who opposed the use of federal judicial power to interfere with both speech and economic policymaking by elected officials. Consistent with his commitment to deferring to legislative judgments about when any regulation was necessary, Clarke brushed aside arguments. Abrams and his confederates had no desire to interfere with the military effort against the Germans on the ground and held that the general strike Abrams called for would cripple American troops. “Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce” (250 U.S. at 621), he wrote. The First Amendment did not protect such speech. Clarke declared, “the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution” (250 U.S. at 623).
Abrams was the first Supreme Court decision on free speech restrictions that was not unanimous. Although several members of the court personally urged Justice Holmes to allow the justices to present a united front to the world, both Holmes and Justice Louis Brandeis ( 1856–1941 ) chose to abandon their previous willingness to sustain the war programs of the federal government. Some of their rationale was technical. Much of Holmes's dissenting opinion is devoted to the proposition that Abrams could not be guilty of violating the Sedition Act because that measure required that persons have the specific intention to interfere with American efforts in the war. The parts that most disturbed the judicial majority and became famous, however, were the passages on the constitutional right to free speech.
Holmes began his constitutional analysis by reaffirming the “clear-and-present-danger” test that he had earlier adopted in Schenck v. United States. In Schenck, the precise nature of the test was unclear. Abrams clarified that only very specific threats warranted suppression. Holmes wrote, “it is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to expression of opinion” (250 U.S. at 628). The dissent then indicated that Jacob Abrams was too obscure a figure to meet that standard. “Nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more,” Holmes declared, “would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so” (250 U.S. at 628).
These uninspired words were followed by the most quoted defense of free speech rights ever penned by an American. “Persecution for the expression of opinions seems to me perfectly logical,” Holmes wrote.
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 wholeheartedly 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 (250 U.S. at 630).
A longstanding debate exists over the relationship between these words and the Schenck opinion. Most scholars think that Holmes, convinced by such younger judges as Learned Hand, became more sympathetic to free speech. On another view, Holmes had always intended clear and present danger to be a speech-protective standard, and Abrams was his first opportunity to make this clear. A third view suggests that clear and present danger from the very beginning protected only “an unknown man,” while providing little protection for those whose speech influenced people.
Holmes's dissent in Abrams soon became the standard for free speech protection, while disputes continued over how much protection that standard provided. Most notably, in Dennis v. United States, 341 U.S. 494 ( 1951 ), both the main opinion for the Court and the main dissents relied heavily on different versions of the concept of clear and present danger. Chief Justice Fred Vinson's ( 1890–1953 ) opinion sustaining the conviction of communist organizers insisted that clear and present danger was met when a significant probability of harm existed, even if that harm was unlikely to occur immediately. Justices Hugo Black and William O. Douglas, in dissent, insisted that clear and present danger required immediate harm. Nearly twenty years later, the Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 ( 1969 ), settled that dispute by interpreting Abrams and Justice Brandeis's subsequent concurring opinion in Whitney v. California, 274 U.S. 357 ( 1927 ), as permitting government regulation of political speech only when the evidence demonstrates incitement to imminent violence.
SEE ALSO American Constitutional Development from 1868 to 1937 ; Freedom of Speech ; Freedom of the Press ; Holmes, Oliver Wendell, Jr. ; Open Society .
Graber, Mark A. Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism. Berkeley: University of California Press, 1991.
Gunther, Gerald. “Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History.” Stanford Law Review 27 (1975): 719–73.
Polenberg, Richard. Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. New York: Viking, 1987.
Rabban, David M. Free Speech in Its Forgotten Years, 1870–1920. New York: Cambridge University Press, 1997.
Mark A. Graber
University of Maryland Carey School of Law