Abrams v. United States
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| Abrams v. United States | |||||||||||||||
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| Argued October 21 – 22, 1919 Decided November 10, 1919 |
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| Holding | |||||||||||||||
| Defendants' criticism of U.S. 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 | |||||||||||||||
| Chief Justice: Edward Douglass White Associate Justices: Joseph McKenna, Oliver Wendell Holmes, Jr., William R. Day, Willis Van Devanter, Mahlon Pitney, James Clark McReynolds, Louis Brandeis, John Hessin Clarke |
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| Case opinions | |||||||||||||||
| Majority by: Clarke Joined by: White, McKenna, Day, Van Devanter, Pitney, McReynolds Dissent by: Holmes Joined by: Brandeis |
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| Laws applied | |||||||||||||||
| U.S. Const. amend. I; 50 U.S.C. § 33 (1917) | |||||||||||||||
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Abrams v. United States, 250 U.S. 616 (1919), was a decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to criticize the U.S. federal government. The Court ruled 7-2 that the Act did not violate civil rights under the First Amendment, with Justices Oliver Wendell Holmes and Louis Brandeis dissenting. The case was overturned during the Vietnam War era in Brandenburg v. Ohio.
[edit] Holmes' Dissent
In this famous dissent, Holmes declares that the issue here is one of fact and degree. He continues with the test that he laid out in the earlier free speech cases such as Schenck v. United States, which was to look at whether there is a clear and present danger that would justify the regulation of the content of the speech. Without such a danger, regulation of speech content is presumptively invalid. But here, unlike where Holmes wrote for the majority, he doesn’t defer to the legislature. Some experts point to this as the birthing of modern Constitutional law – the court was finally accepting that law and politics are not radically different.
What account did Holmes give for this switch? “Government may regulate speech that produces or intended to produce a clear and imminent danger”. Here, like in his previous majority opinions, he focuses on intent. The argument for this is that the activity with the intent is more likely to cause such a result than a comparable activity without such an intent. The focus on intent may be part of the likelihood of causation of a tangible harm analysis. However, critics claim that there is another, and very problematic, way of reading this. They focus on Holmes' description of the case, as the "surreptitious publishing of a silly leaflet by an unknown man," and therefore there was not a clear and present danger here. What danger can these “puny” people pose to anyone? The critics claim that this is not a great way to make the freedom of speech argument, because under such a formula you only get protection if you are poor, puny and irrelevant. For the most part, this type of argument has drifted out of the law.
The opinion speaks about when and how speech should be protected. Holmes says that when someone is certain that his opinion is right, they tend to translate that into law and force it onto other people. To allow opposition just means you think that it is irrelevant and not a threat. But in the long run, people realize that “time has upset many fighting faiths”. The marketplace is the best way to develop new ideas. Skepticism, no absolute permanent truth – those are the founding blocks of constitutional law. However, critics point out that skepticism tends to be self undermining. Also, it can easily become nihilism – nothing matters! If nothing matters, why protect anything?
In explaining why we should not regulate speech content when there is no imminent danger, Holmes writes 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. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” There is a market, one that tends to produce at least provisionally good results. Therefore, “normally, we should leave the correction of evil councils to time.”
