Abrams vs. United States: Limits to dissent in a time of war

By Lillie Eastham and Hayley Robb, F/G Scholars

Socialists arrested for distributing anti-war pamphlets (Photo Courtesy UMKC Law School)

Abrams v. United States (1919) stems from a time when war was raging with Germany on Russian soil after revolutionists had overtaken the tsarists (Oyez, 2018). In an act of protest against the war, six Russian immigrants were involved in releasing thousands of pamphlets encouraging the general strike of producing munition necessary for the war efforts (Oyez, 2018). The pamphlets were dropped from a building window in New York City – one was written in English while the other was in Yiddish (Oyez, 2018).

The oldest of the immigrants, Jacob Abrams, was the one to buy a power press and then install it in a cellar where he printed five thousand copies of each leaflet (Chafee, 1920, p. 750). He was only forced to stop due to a lack of funds (Chafee, 1920, p. 750). The defendants were found guilty in district court with sentences from 3 to 20 years in prison (Chafee, 1920, p. 763). One man was acquitted by the district court but Abrams would proceed to take his case all the way to the Supreme Court of the United States (Chafee, 1920, p. 761).

The Supreme Court ruled the defendants were guilty by a 7 to 2 ruling, under the conviction that they had violated the Espionage Act of 1917 through the ‘clear and present danger test’ (Oyez, 2018).

The ‘clear and present danger test’ became a precedent only months earlier in Schenck v. United States (1919). This case was very similar, in that Schenck was distributing materials that encouraged men not to submit to the draft. The ruling in this case was unanimously in favor of the government, and the majority opinion was written by Justice Oliver Wendell Holmes. His opinion stated that freedom of speech could be restricted if it presented a clear and present danger. Additionally, he pointed out that the standard for this was much less strict during wartime. (“A Clear and Present Danger Test,” 2018)

The majority opinion made the claim, “There are limits on the protections on speech afforded by the First Amendment, and it does not prevent individuals from facing the consequences of their actions. Protections on speech are lower during wartime…” (250 U.S. 616).

And while the dissent does not carry the force of binding law, they argued, “The rights protected by the First Amendment lie at the foundation of freedom, which requires the permission to dissent from the government’s viewpoints and objectives. Protections on speech should not be curtailed unless there is a present danger of immediate evil, or the defendant intends to create such a danger. The evidence in this case consisted of two leaflets, which do not meet this standard” (250 U.S. 616).

The guilty verdict rest on four counts that violated the Espionage Act of 1917. The first count was on the basis of “disloyal, scurrilous and abusive” language about the United States Government (250 U.S. 616). The second count was on the intention to bring the Government into “contempt, scorn, contumely and disrepute…” (250 U.S. 616). The third count was “intended to incite, provoke and encourage resistance to the United States in said war” (250 U.S. 616). And finally, the fourth count was made for the defendant’s decision to“unlawfully and willingly” publish and advocate for the curtailment of materials necessary for war (250 U.S. 616). The Court ruled this act posed immediate harm to the Government and the people (Oyez, 2018).

Oddly enough, the dissent in this case was written by Justice Holmes, the same man that had set the precedent in Schenck v. United States. He had received unexpected criticism from scholars after the verdict in Schenck. Instead of brushing this criticism aside, he listened to what they had to say and his opinion on freedom of speech almost completely flipped (Cohen, 2013). As a result, his dissent is an argument against the very precedents that he had set only months before.

Arguably, the lasting impact from this case largely came from Holmes’s dissent, although it did not hold the weight of law, his dissent was one of the first interpretations of the First Amendment as we know it today, an almost universal protection of free speech (Cohen, 2013). Not only that, Holmes also articulated the ‘Marketplace of Ideas’, one of the most popular defenses of freedom of speech to this day (Lewis, 2015). His willingness to acknowledge that his own ‘clear and present danger’ standard was too broad, even as the rest of the court embraced it, was a huge turning point in how the courts interpreted the First Amendment.


Abrams v. United States: The Dissent That Shaped Free Speech (n.d.). Retrieved September 16, 2018, from https://constitutionallawreporter.com/2015/09/24/historicalabrams-v-united-states-the-dissent-that-shaped-free-speech/l
Abrams v. United States. (n.d.). Oyez. Retrieved September 16, 2018, from https://www.oyez.org/cases/1900-1940/250us616

Abrams v. United States, 250 U.S. 616 (1919). (1919). Retrieved September 16, 2018, from https://supreme.justia.com/cases/federal/us/250/616/#tab-opinion-1928348

“A Clear and Present Danger”. (2018). Retrieved September 18, 2018, from http://www.crf-usa.org/america-responds-to-terrorism/a-clear-and-present-danger.html

Chafee, Z. (1920). A Contemporary State Trial: The United States versus Jacob Abrams et al. Harvard Law Review,33(6), 747. doi:10.2307/1327028

Cohen, A. (2013, August 10). The Most Powerful Dissent in American History. Retrieved September 18, 2018, from https://www.theatlantic.com/national/archive/2013/08/the-most-powerful-dissent-in-american-history/278503/

Lewis, F. P. (1970, January 01). Oliver Wendell Holmes Jr. and the “Marketplace of Ideas”: Experience Proves To Be the “Life of the Law”. Retrieved September 16, 2018, from https://link.springer.com/chapter/10.1007/978-1-137-41262-1_2
“A Clear and Present Danger”. (2018). Retrieved September 18, 2018, from http://www.crf-usa.org/america-responds-to-terrorism/a-clear-and-present-danger.html

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