Abrams v. United States
Encyclopedia
Abrams v. United States, 250 U.S. 616 (1919), was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917
, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the Sedition Act of 1918
.
The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building in New York City. One leaflet, signed "revolutionists", denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution
and advocated the cessation of the production of weapons to be used against Soviet Russia
.
The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years in prison. The Supreme Court ruled 7–2 that the Act did not violate the freedom of speech protected by the First Amendment
. Justice John Hessin Clarke
used a relatively restrictive speech test – "bad tendency" – to uphold the conviction. Justices Oliver Wendell Holmes
and Louis Brandeis
dissented and said that the more speech protective standard – "clear and present danger
" – ought to be applied to overturn the conviction. The case was ultimately overturned during the Vietnam War
era in Brandenburg v. Ohio
(1968), a case against the KKK where the Court adopted the "incitement to imminent lawless action" standard – a test even more speech protective than "clear and present danger
."
asserted that the leaflets were an appeal to violence against the United States government as opposed to peaceful change. In quoting heavily from the leaflets themselves, Clark wrote: "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."
Clark further discussed the purpose behind the leaflets, stating that they "sufficiently show, that while the immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our government sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe."
Clark explained that the leaflets called for a general strike and the curtailment of munitions production, in violation of the Sedition Act of 1918
. Although the distribution of the leaflets did not incite immediate resistance, the materials or speech had a "tendency" to encourage violent resistance, and therefore were not protected by the First Amendment
: "...the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war... and, the defendants, in terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war.... Thus it is clear not only that some evidence but that much persuasive evidence was before the jury tending to prove that the defendants were guilty as charged...."
Holmes had recently changed his views on the Espionage Act, especially the Sedition Act, and it's relationship with free speech, based on his conversations with Zechariah Chafee and other academics. He argued that the First Amendment left no room for the government suppression of dangerous ideas, except where a threat was imminent. The Majority Opinion had held instead that the First Amendment left the common law rule of seditious libel intact. Holmes felt that the founders expansion of free speech was "an experiment, as all life is an experiment" and he opined that a twenty year sentence against the defendants was an unconstitutional punishment for their beliefs. Holmes wrote:
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...
, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the Sedition Act of 1918
Sedition Act of 1918
The Sedition Act of 1918 was an Act of the United States Congress that extended the Espionage Act of 1917 to cover a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds...
.
The defendants were convicted on the basis of two leaflets they printed and threw from windows of a building in New York City. One leaflet, signed "revolutionists", denounced the sending of American troops to Russia. The second leaflet, written in Yiddish, denounced the war and US efforts to impede the Russian Revolution
October Revolution
The October Revolution , also known as the Great October Socialist Revolution , Red October, the October Uprising or the Bolshevik Revolution, was a political revolution and a part of the Russian Revolution of 1917...
and advocated the cessation of the production of weapons to be used against Soviet Russia
Russian Soviet Federative Socialist Republic
The Russian Soviet Federative Socialist Republic , commonly referred to as Soviet Russia, Bolshevik Russia, or simply Russia, was the largest, most populous and economically developed republic in the former Soviet Union....
.
The defendants were charged and convicted for inciting resistance to the war effort and for urging curtailment of production of essential war material. They were sentenced to 20 years in prison. The Supreme Court ruled 7–2 that the Act did not violate the freedom of speech protected by the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. Justice John Hessin Clarke
John Hessin Clarke
John Hessin Clarke was an American lawyer and judge who served as an Associate Justice of the United States Supreme Court from 1916 to 1922.-Early life:...
used a relatively restrictive speech test – "bad tendency" – to uphold the conviction. Justices Oliver Wendell Holmes
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
and Louis Brandeis
Louis Brandeis
Louis Dembitz Brandeis ; November 13, 1856 – October 5, 1941) was an Associate Justice on the Supreme Court of the United States from 1916 to 1939.He was born in Louisville, Kentucky, to Jewish immigrant parents who raised him in a secular mode...
dissented and said that the more speech protective standard – "clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...
" – ought to be applied to overturn the conviction. The case was ultimately overturned during the Vietnam War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
era in Brandenburg v. Ohio
Brandenburg v. Ohio
Brandenburg v. Ohio, , was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action...
(1968), a case against the KKK where the Court adopted the "incitement to imminent lawless action" standard – a test even more speech protective than "clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...
."
Majority Opinion
Writing for the majority, Justice John Hessin ClarkeJohn Hessin Clarke
John Hessin Clarke was an American lawyer and judge who served as an Associate Justice of the United States Supreme Court from 1916 to 1922.-Early life:...
asserted that the leaflets were an appeal to violence against the United States government as opposed to peaceful change. In quoting heavily from the leaflets themselves, Clark wrote: "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."
Clark further discussed the purpose behind the leaflets, stating that they "sufficiently show, that while the immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our government sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe."
Clark explained that the leaflets called for a general strike and the curtailment of munitions production, in violation of the Sedition Act of 1918
Sedition Act of 1918
The Sedition Act of 1918 was an Act of the United States Congress that extended the Espionage Act of 1917 to cover a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds...
. Although the distribution of the leaflets did not incite immediate resistance, the materials or speech had a "tendency" to encourage violent resistance, and therefore were not protected by the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
: "...the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war... and, the defendants, in terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war.... Thus it is clear not only that some evidence but that much persuasive evidence was before the jury tending to prove that the defendants were guilty as charged...."
Holmes' Dissent
In his dissent, Holmes wrote that although the defendant's pamphlet called for a cease in weapons production, it had not violated the Act of May 16, 1918 because they did not have the requisite intent "to cripple or hinder the United States in the prosecution of the war."Holmes had recently changed his views on the Espionage Act, especially the Sedition Act, and it's relationship with free speech, based on his conversations with Zechariah Chafee and other academics. He argued that the First Amendment left no room for the government suppression of dangerous ideas, except where a threat was imminent. The Majority Opinion had held instead that the First Amendment left the common law rule of seditious libel intact. Holmes felt that the founders expansion of free speech was "an experiment, as all life is an experiment" and he opined that a twenty year sentence against the defendants was an unconstitutional punishment for their beliefs. Holmes wrote:
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 foundation of their own conduct that the ultimate good desired is better reached by free trade in ideas.
See also
- List of United States Supreme Court cases, volume 250
- Schenck v. United StatesSchenck v. United StatesSchenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...
, - Whitney v. CaliforniaWhitney v. CaliforniaWhitney v. California, 274 U.S. 357 , was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society.-Facts:...
, - Dennis v. United StatesDennis v. United StatesDennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...
, - Brandenburg v. OhioBrandenburg v. OhioBrandenburg v. Ohio, , was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action...
,