Background
On August 23rd 1918, four political anarchist were arrested in New York City for handing out ‘anti war leaflets’ in the streets. Among the people arrested for passing out the leaflets were Jacob Abrams, a Russian immigrant and anarchist, along with his other ‘comrades’; Molly Steitmer, Samuel Lipman, and Hyman Lachowsky. The leaflets were written/printed in two languages, one version was written in Yiddish and another in English. They were distributed throughout the city, and condemned Woodrow Wilson’s involvement in World War I (The Yiddish leaflet called for a general strike to protest against government intervention). The group of protesters were indicted under the Sedition Act of 16 May 1918 which made it a crime to “willfully utter, print, write,or publish any disloyal, profane, scurrilous, or abusive language” about the United States government, additionally it was against the law to “willfully urge, incite or advocate any curtailment of production” of things “necessary or essential to the prosecution of the war… with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.”. The group of protesters were found guilty before federal district court judge Henry DeLamar Clayton, Jr., they were sentenced to serve between 15- 20 years in federal prison. The defendants appealed their conviction on the grounds of free speech and it went all the way up to the Supreme Court. Their case arguments began on the 21st of October 1919 and a final decision was made in November of that same year.
Majority opinion (with a vote of 7 to 2 Written by Justice John Hessien Clarke)
In the middle of the appeals process the Supreme Court upheld the convictions of antiwar socialist under the Espionage Act of 1917 (Schneck v United States) and under the Sedition Act of 1918 (Debs v United States). Both cases would be influential in the reasoning behind the Abram’s case. Additionally, both decisions were unanimous and were written by Justice Oliver Wendell Holmes who reasoned in the Schneck case that “[t]he question in every case is whether the words used are used in such a circumstance and are of such a nature as to create a clear and present danger that they will bring substantive evils that congress has a right to prevent”. A similar line of reasoning would be used in the Abrams case by the majority opinion written by Justice Clarke. The leaflets were indeed a ‘clear and present danger’, Clarke rationalized that because they had been handed out “at the supreme crisis of the war” and could be simplified as “an attempt to defeat the war plans of the Government”. Any form of speech that impeded (or could impeded) the American war effort was now deemed the law of the land.
Dissenting Opinion (Written by Justice Oliver Wendell Holmes )
Ironically, the dissenting opinion would come from the man who had written the opinions which set the precedent for the reasoning behind the argument for Abrams conviction. His dissent went against his previous definition of ” clear and present danger”. Justice Holmes had drastically modified his point of view by the time he’d have to see the Abrams case. Having been personally disturbed by the oppression resulting from the anti radical hysteria of the time, and being influenced by lawyers with libertarian interpretation of the law, Holmes began to lean towards a more libertarian point of view on the “clear and present” danger precedent.
Holmes now reasoned, “(congress) constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent” Furthermore, Holmes denied that ” the surreptitious publishing of a silly leaflet by an unknown man” created an imminent threat to the government. For Holmes the First Amendment protected the expression of all opinions ” unless they imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country”.
The Supreme Courts would continue to battle with the definition of “clear and imminent” danger when it came to free speech, and the Abrams case is an important case for this fight for free speech. What stands out the most in this case is the eloquent and well articulated dissent of Justice Holmes. He opens up the discussion for future generations of the connection between freedom of speech, the search for the truth, and the importance of worldly experimentation:
” 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. It is an experiment, as all life is an experiment”
Wise words from a decent man.
Sources: https://scholar.google.com/scholar_case?case=14321466231676186426&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Sermo Civilis 