Oliver Wendell Holmes, Jr.: Dissent in Abrams v. United States

Explanation and Analysis of the Document

Jacob Abrams was a Russian immigrant and anarchist living in New York City, where, amid the clamor of debate over U.S. involvement in World War I, he was arrested in August 1918. Abrams and several associates were charged with violating the Sedition Act of 1918 (an amendment to the 1917 Espionage Act) by writing, printing, and distributing two leaflets—one in English, one in Yiddish—denouncing President Woodrow Wilson for sending troops to fight in Soviet Russia. The Yiddish version also included a call for a general strike to protest U.S. interventionist policy. At trial in federal court, the leaflets were found to violate the Sedition Act's ban against language abusive to the government as well as its prohibition of speech intended to curtail the production of materials essential to the prosecution of the war.

Upon appeal, a seven-member majority of the Supreme Court voted to uphold Abrams's criminal conviction. Justice John H. Clarke, writing for the Court, cited the “clear and present danger” test that Holmes had announced only months before in his opinion for the unanimous Court in Schenck v. United States. But during the intervening period, Holmes had modified his perception of his own test, as spurred by the persecution of dissidents during the “red scare” that followed World War I as well as by a Harvard Law Review article. The article in question, by Zechariah Chafee, Jr., mistakenly claimed that Holmes had intended his new test to make punishment for the “bad tendency” of words to be impossible; but Holmes, in turn, used Chafee's argument to buttress his refinement of what constitutes “clear and present danger” in his Abrams dissent, in which he was joined by Justice Brandeis.

Although the questions of law presented in Schenck were rightly decided, Holmes asserts, the basic principle of free speech is the same during war as it is in times of peace: Congress can prohibit speech only when it threatens to provoke immediate danger. In this case, “the surreptitious publishing of a silly leaflet by an unknown man” cannot be construed as threatening immediate danger—even in wartime, when the government does have, of necessity, greater latitude in prohibiting certain kinds of speech. The Sedition Act, meanwhile, requires that the same party responsible for performing a prohibited act also be responsible for forming the criminal intent behind the act; the kind of conspiracy of words outlawed in Abrams under the original Espionage Act cannot be a consideration here. Holmes goes on to say that persecution for the expression of opinion may make sense logically, but history has undone many “fighting faiths,” and society has come to understand that the validity of any belief can best be tested by free exchange in the marketplace of ideas. This, he says, is the theory behind the nation's very Constitution, which is itself a grand experiment. Holmes concludes that the First Amendment trumps common law with respect to seditious libel, such that neither expression of belief nor mere exhortation to action qualifies as criminal offense.

For the next decade, Holmes and Brandeis continued to develop their notion of what would constitute clear and present danger sufficient to allow government prohibition of speech. The Court eventually adopted their libertarian view of First Amendment protection for political dissent, and many aspects of the “clear and present danger” test remain at the heart of First Amendment law today. Holmes's Abrams dissent is generally accounted his most influential opinion.