| Abrams v. United States | |
|---|---|
 | |
| Argued October 21–22, 1919 Decided November 10, 1919 | |
| Full case name | Jacob Abrams, et al. v. United States |
| Citations | 250U.S.616 (more) 40 S. Ct. 17; 63L. Ed. 1173; 1919U.S. LEXIS 1784 |
| Case history | |
| Prior | Defendants convicted, U.S. District Court for the Southern District of New York |
| Subsequent | None |
| Holding | |
| Defendants' criticism of American 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) | |
Overruled by | |
| Brandenburg v. Ohio, 395 U.S. 444 (1969) (in part) | |
Abrams v. United States, 250 U.S. 616 (1919), was a decision by theSupreme Court of the United States upholding the criminal arrests of several defendants under theSedition Act of 1918, which was an amendment to theEspionage Act of 1917. The law made it a criminal offense to criticize the production ofwar materiel with intent to hinder the progress of American military efforts.[1]
The defendants had been arrested in 1919 for printing and distributing anti-war leaflets in New York City. After their conviction under the Sedition Act, they appealed onfree speech grounds. The Supreme Court upheld the convictions under theclear and present danger standard, which allowed the suppression of certain types of speech in the public interest.[2]
The ruling is best known for its dissent by JusticeOliver Wendell Holmes, which led to a gradual liberalization of the Supreme Court'sFirst Amendment jurisprudence.[3][4] The clear and present danger standard, used in this ruling to uphold the criminal convictions, fell out of favor and the Supreme Court largely overturned it in 1969.[5]
On August 23, 1918, Hyman Rosansky was arrested after throwing flyers out of a fourth-floor window of a hat factory inLower Manhattan.[6] Rosansky had received the flyers at ananarchist meeting the previous day. There were two separate leaflets: one in English and signed "Revolutionists" that denouncedthe sending of American troops to intervene in theRussian Civil War, and a second inYiddish that favored thecommunist side in theRussian Revolution and denounced the American production of weapons to be used against the communists.[7] Jacob Abrams, whose name was eventually used in the Supreme Court ruling, had printed the leaflets in his basement workshop. Relying on information provided by Rosansky, police soon arrested Abrams,Mollie Steimer, and four other activists. All including Rosansky had emigrated to the United States from Russia and supported the communists in their efforts to depose the incumbentczarist regime.[8]
The defendants were charged under theSedition Act of 1918 for inciting resistance to American military actions and urging curtailment of production of essentialwar materiel. They were also charged for conspiring with Germany, which was an opponent of both the United States and Russia at the time.[2] One defendant–Jacob Schwartz– died while in jail from theSpanish Flu, while another– Gabriel Porter–was acquitted.[7] The five remaining defendants were convicted in criminal court and received various sentences ranging from three to twenty years in prison; some were also condemned to deportation to their native Russia after the completion of their prison sentences. The defendants attempted afree speech argument and claimed that the Sedition Act conflicted with thefree speech protections of theFirst Amendment to the U.S. Constitution, but the trial court rejected this argument.[2] All five appealed their convictions to theUnited States Supreme Court with a focus on the First Amendment argument.
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The Supreme Court ruled 7–2 that the defendants' freedom of speech had not been violated. JusticeJohn Hessin Clarke, author of the majority opinion, argued that Congress had passed the Sedition Act with the rationale that critics of American military efforts presented an "imminent danger that it [the offending speech] will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent."[2] The Supreme Court upheld the defendants' criminal convictions per theclear and present danger test that it had formulated earlier the same year inSchenck v. United States, a case that also involved a speech-related arrest under the Sedition Act.[9]
Clarke argued that the defendants' leaflets inAbrams demonstrated an intent to hinder production of war materiel, which was a clear violation of the terms of the Sedition Act and could not be characterized as simple expressions of political opinion. Clarke 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.[2]
For the defendants' claim that they were merely supporters of Russian revolutionaries in a conflict that was purely internal to Russia, Clarke found a connection to the then-current conflict between the United States and Germany. Clarke reasoned that the defendants resented "our Government [for] sending troops into Russia as a strategic operation against the Germans on the eastern battle front."[2] During the hearing, JusticeOliver Wendell Holmes objected on the grounds that the criminal prosecutors should have shown specific intent by the defendants to bring about the harms for which they were charged, but the majority dismissed this argument.[3]
The Court held that the leaflets' call for the curtailment of war materiel production violated the Sedition Act and the arrests were justifiable per statute. Congress's determination that all such propaganda posed a danger to the war effort was ruled sufficient to meet the standard set inSchenck v. United States for prosecution of attempted crimes, regardless of whether the attempt was made through speech or writing. Thus, the criminal convictions were upheld.[2]
JusticeOliver Wendell Holmes had sided with the majority in the earlier cases, notablySchenck, in which the Supreme Court upheld speech-related criminal convictions under the Sedition Act. InAbrams, Holmes issued adissenting opinion that reflected a change in his views on criticism of government and the intent to create harms to the public or the nation.[3] Holmes rejected the argument that the defendants' leaflets posed aclear and present danger and argued that the defendants had received prison sentences "not for what the indictment alleges but for the creed that they avow."[2]
Holmes wrote that, although the defendant's leaflets called for a cessation of weapons production, they had not violated theSedition Act of 1918 because the leaflets did not display acriminal intent "to cripple or hinder the United States in the prosecution of the war" against Germany. The defendants were objecting only to the American military's intervention in the Russian civil war.[2] Holmes's previous opinion inSchenck had been criticized by Constitutional scholarZechariah Chafee for failing to distinguish between speech-based opposition to military operations and intent to commit a crime. He also objected to the idea that the Sedition Act could be used to prosecute all seditious speech regardless of the military conflict being discussed.[3]
Holmes continued with a defense offree speech andcriticism of government, which he believed should be protected by the Constitution. He may have also been influenced by the fact that some friends in the Jewish immigrant community had recently been harassed by authorities for theirleft-wing political opinions.[3][4] Holmes also had experience as a judge in criminal court and was familiar with the common law of convictions and sentencing, which is believed to have informed his changing views on the prosecution of speech-based offenses.[10] InAbrams, he found the prison sentences to be excessive, arguing 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," they had been convicted not for dangerous crimes, but for their beliefs.[2]
Holmes then turned to the value of speech that is critical of government, and the ability of those who disagree to react to that speech, without intervention by government or punishment of those with unpopular opinions. He argued that efforts to suppress opinions by force therefore contradict a fundamental principle of the Constitution.[2] While he did not use the term himself, this focus on public debate rather than government prosecution has since been dubbed themarketplace of ideas.[11] Holmes's passionate, indignant opinion on this matter has become very influential[12] and 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 — 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.[2]
While the Supreme Court upheld the criminal convictions against Jacob Abrams and the other defendants, the dissent by Holmes has proven to be more influential for laterFirst Amendment jurisprudence.[3]
There is evidence that Holmes's dissent in Abrams was influenced byZechariah Chafee, and colleagues likeLouis Brandeis andLearned Hand,[13] while his apparently inconsistent views of speech that criticizes the government attracted some criticism.[14] However, his dissent was eventually acknowledged as a significant turning point in the American judiciary's views on political speech, with themarketplace of ideas analysis gradually becoming the standard in court disputes about government suppression of speech.[15] This indeed happened by the 1950s-60s, as the judiciary transitioned to a focus on the risk ofimminent lawless action caused by speech that government officials find inappropriate.[16]
Those later cases were informed by the government's actions against its critics duringWorld War II, at which time attitudes had changed sinceAbrams which was engendered byWorld War I.[4] A key turning point was aSecond Circuit opinion by JudgeLearned Hand inU.S. v. Dennis in 1950,[17] critiquing theclear and present danger standard.[18] This inspired further dissents in favor of unfettered political speech from a bitterly divided Supreme Court when they heard the case onappeal the following year.[19] The clear and present danger standard was gradually dropped in favor of the imminent lawless action standard, with more input for the marketplace of ideas. The imminent lawless action standard was confirmed by the Supreme Court inBrandenburg v. Ohio in 1969.[5] That ruling effectively overturnedAbrams and several other Supreme Court precedents from the same era.[13]
Contemporary discussions about the case were robust. Due to popular pressure, Congress repealed the statute at the heart ofAbrams and several other recent Supreme Court rulings – theSedition Act of 1918 – just one year afterAbrams. Most arrestees were grantedclemency by PresidentWoodrow Wilson (although notably notEugene V. Debs).[20]
In 1921, Woodrow Wilson offered clemency to most of those convicted under the Sedition and Espionage Acts.
