Abrams v. United States 250 U.S. 616 (1919)

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ABRAMS v. UNITED STATES 250 U.S. 616 (1919)

In schenck v. united states (1919) Justice oliver wendell holmes introduced the clear and present danger test in upholding the conviction under the espionage act of a defendant who had mailed circulars opposing military conscription. Only nine months later, in very similar circumstances, the Supreme Court upheld an Espionage Act conviction and Holmes and louis d. brandeis offered the danger test in dissent. Abrams is famous for Holmes's dissent which became a classic libertarian pronouncement.

Abrams and three others distributed revolutionary circulars that included calls for a general strike, special appeals to workers in ammunitions factories, and language suggesting armed disturbances as the best means of protecting the Russian revolution against American intervention. These circulars had appeared while the United States was still engaged against the Germans in world war i. Their immediate occasion was the dispatch of an American expeditionary force to Russia at the time of the Russian revolution. The majority reasoned that, whatever their particular occasion, the circulars' purpose was that of hampering the general war effort. Having concluded that "the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war" and that they urged munitions workers to strike for the purpose of curtailing the production of war materials, the opinion upheld the convictions without actually addressing any constitutional question. The majority obviously believed that the Espionage Actmight constitutionally be applied to speech intended to obstruct the war effort.

Justice Holmes mixed a number of elements in his dissent, and the mixture has bedeviled subsequent commentary. Although it is not clear whether Holmes was focusing on the specific language of the Espionage Act or arguing a more general constitutional standard, his central argument was that speech may not be punished unless it constitutes an attempt at some unlawful act; an essential element in such an attempt must be a specific intent on the part of the speaker to bring about the unlawful act. He did not read the circulars in evidence or the actions of their publishers as showing the specific intent to interfere with the war effort against Germany that would be required to constitute a violation of the Espionage Act.

His Abrams opinion shows the extent to which Holmes's invention of the danger rule was a derivation of his thinking about the role of specific intent and surrounding circumstances in the law of attempts. For in the midst of his discussion of specific intent he wrote, "I do not doubt … that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.… It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion.…"

Over time, however, what has survived from Holmes's opinion is not so much the specific intent argument as the more general impression that the "poor and puny anonymities" of the circulars could not possibly have constituted a clear and present danger to the war effort. At least in contexts such as that presented in Abrams, the clear and present danger test seems to be a good means of unmasking and constitutionally invalidating prosecutions because of the ideas we hate, when the precautions are undertaken not because the ideas constitute any real danger to our security but simply because we hate them. Although the specific intent aspect of the Abrams opinion has subsequently been invoked in a number of cases, particularly those involving membership in the Communist party, the Abrams dissent has typically been cited along with Schenck as the basic authority for the more general version of the clear and present danger standard that became the dominant freedom of speech doctrine during the 1940s and has since led a checkered career.

Justice Holmes also argued in Abrams that the common law of seditious libel has not survived in the United States; the Supreme Court finally adopted that position in new york times v. sullivan (1964).

The concluding paragraph of the Abrams dissent has often been invoked by those who wish to make of Holmes a patron saint of the libertarian movement:

Persecution for the expression of opinions seems to me perfectly logical … but when men have realized that time has upset many fighting faiths, they may come to believe even more 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. 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.… Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law … abridging the freedom of speech."

Sensitized by the destructive powers of such "fighting faiths" as Fascism and communism, subsequent commentators have criticized the muscular, relativistic pragmatism of this pronouncement as at best an inadequate philosophic basis for the libertarian position and at worst an invitation to totalitarianism. The ultimate problem is, of course, what is to be done if a political faith that proposes the termination of freedom of speech momentarily wins the competition in the marketplace of ideas and then shuts down the market. Alternatively it has been argued that Holmes's clear and present danger approach in Abrams was basically conditioned by his perception of the ineffectualness of leftist revolutionary rhetoric in the American context of his day. In this view, he was saying no more than that deviant ideas must be tolerated until there is a substantial risk that a large number of Americans will listen to them. The clear and present danger test is often criticized for withdrawing protection of political speech at just the point when the speech threatens to become effective. Other commentators have argued that no matter how persuasive Holmes's comments may be in context, the clear and present danger approach ought not to be uncritically accepted as the single freedom of speech test, uniformly applied to speech situations quite different from those in Abrams. Perhaps the most telling criticism of the Holmes approach is that it vests enormous discretion in the judge, for ultimately it depends on the judge's prediction of what will happen rather than on findings of what has happened. Subsequent decisions such as that in feiner v. new york (1951) showed that judges less brave than Holmes or less contemptuously tolerant of dissident ideas, might be quicker to imagine danger.

Martin Shapiro
(1986)