Condemning ‘‘the hypocrisy of the United States and her allies’’ and denouncing President Woodrow Wilson as a hypocrite and a coward, Jacob Abrams and four associates—all five Russian-born Jews and avowed anarchists—distributed fliers on the Lower East Side of Manhattan in the summer of 1918 directing attention to U.S. efforts to halt the Bolshevik Revolution. Among other things, the fliers called for a general strike by workers to stymie the war effort against the imperial German government. Abrams and his colleagues were charged with violating the Espionage Act of 1917 (as amended in 1918), which allowed convictions for conspiring to ‘‘utter, print, write, and publish disloyal, scurrilous, and abusive language about the form of government of the United States, or language intended to bring the form of government of the United States into contempt, scorn, contumely and disrepute, or intended to incite, provoke, and encourage resistance to the United States [. . .]’’ Thus, the stage was set for one of the most important freedom of speech cases of the twentieth century.
One of the defendants (Joseph Schwartz) died the night before the trial started; a federal district court found the other four guilty of violating the act. At the U.S. Supreme Court, Justice John H. Clarke affirmed the convictions, emphasizing the special circumstances of wartime and the potential consequences of the dissident speech. Rooting the Court’s conclusions in the recent precedent dealing with similarly ‘‘dangerous’’ speech—especially Schenck v. United States, 249 U.S. 47 (1919), Frohwerk v. United States, 249 U.S. 204 (1919), and Debs v. United States, 249 U.S. 211 (1919)—Clarke found that 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.
Thus, the Court deemed that the expression in question constituted a ‘‘clear and present danger’’ (‘‘whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent’’)—the legal test recently implemented in the Schenck case—in that such advocacy may have had the tendency to inhibit the war effort, among other things. Congress was, therefore, within its authority to restrict speech in such a fashion.
Yet, Abrams is actually more famous for the powerful and poetic dissent authored by Justice Oliver Wendell Holmes, Jr. Though Holmes was, ironically, the one who had recently devised the ‘‘clear and present danger’’ test, he pulled back in Abrams, finding (with Justice Louis D. Brandeis) that the statutory requirement of ‘‘intent’’ had not been demonstrated in this case. More importantly, the speech at hand was not worthy of the alarm alleged by the state and accepted by the Court majority. Indeed, indicating the influences of early twentieth century philosophical pragmatism on his thinking, Holmes averred that, while one may be disturbed by or disagree with the substantive nature of such dissent, one should still be willing to subject it to the processes of inquiry, scrutiny, and significantly, ‘‘competition.’’ The following passage portrays Holmes’ famous assertion of how and why this might be done:
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 for 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.
Thus, the theory of the ‘‘marketplace of ideas’’ was formally articulated in American law.
While the introduction of this metaphor was significant in that it has become the predominant trope for the contemplation of free-speech issues in the United States, the Abrams decision was significant as well because it demonstrated the first serious challenge to the ‘‘clear and present danger’’ test. In essence, Holmes wondered, in this case, exactly how ‘‘clear and present’’ must the ‘‘danger’’ be in order for congressional authority to reach the situation? Estimating proximity and degree in such a way led the Court several decades later to abandon the test in favor of an evaluation of the potential for ‘‘imminent lawlessness’’ in Brandenburg v. Ohio, 395 U.S. 444 (1969).
BRIAN K. PINAIRE
References and Further Reading
Cases and Statutes Cited
See also Freedom of Speech: Modern Period (1917–Present); Holmes, Oliver Wendell, Jr.; Marketplace of Ideas Theory; Schenck v. United States, 249 U.S. 47 (1919)