Abrams v. United States
250 U.S. 616 (1919)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Speech that has the intent and tendency to provoke resistance to the war effort and to curtail the production of war materials is not protected by the First Amendment, especially during wartime.
Facts:
- While the United States was at war with Germany during World War I, the U.S. government sent troops into Russia.
- Jacob Abrams and four other defendants, who were Russian-born anarchists and revolutionaries living in New York City, opposed this military intervention.
- In August 1918, the defendants conspired to print and distribute approximately 5,000 leaflets in New York City to protest the U.S. action.
- One leaflet, written in English, denounced President Wilson and the U.S. government as hypocritical capitalists and called for workers of the world to rise up in revolution.
- A second leaflet, written in Yiddish, urged Russian immigrants and ammunition factory workers to reject the U.S. war effort.
- This second leaflet specifically called for a general strike and for workers to stop producing 'bullets, bayonets, cannon' to prevent them from being used against both Germans and Russian revolutionaries.
- The leaflets were distributed throughout New York City, including by being thrown from a building window.
Procedural Posture:
- Jacob Abrams and four co-defendants were charged in the U.S. District Court for the Southern District of New York with conspiring to violate the Espionage Act of 1917.
- The indictment contained four counts, including publishing abusive language about the U.S. form of government and inciting resistance to the war effort.
- The defendants pleaded 'not guilty' and were tried before a jury.
- The jury returned a verdict of guilty, and the defendants were sentenced to prison.
- The defendants appealed their convictions directly to the Supreme Court of the United States, arguing that the Espionage Act was unconstitutional and that the evidence was insufficient to support the verdict.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the conviction of defendants under the Espionage Act for distributing leaflets criticizing U.S. intervention in Russia and advocating for a general strike in ammunition factories violate their First Amendment free speech rights?
Opinions:
Majority - Mr. Justice Clarke
No. The conviction under the Espionage Act does not violate the defendants' First Amendment rights because their speech was not protected. The plain purpose of the leaflets was to excite disaffection, sedition, and revolution to defeat the military plans of the United States. Citing Schenck v. United States, the court held that even if the defendants' primary purpose was to aid the Russian Revolution, they must be held accountable for the likely effects of their actions, which included hindering the U.S. war effort against Germany. The call for a general strike in ammunition factories was a direct appeal to curtail the production of essential war materials, which is an act Congress has the authority to prevent.
Dissenting - Mr. Justice Holmes
Yes. The conviction under the Espionage Act violates the defendants' First Amendment rights. The government failed to prove the defendants had the specific intent to hinder the war with Germany; their intent was to protest American intervention in Russia. More importantly, their 'silly leaflets' posed no clear and imminent danger to the nation. Holmes argued that freedom of speech protects a 'marketplace of ideas,' and that unpopular opinions should not be suppressed 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.' The defendants' actions did not meet this high standard.
Analysis:
This case is significant primarily for Justice Holmes's dissent, which refined the 'clear and present danger' test he introduced in Schenck. While the majority applied a very broad 'bad tendency' test, punishing speech that might lead to a negative outcome, Holmes argued for a much stricter standard requiring an immediate and grave danger. His dissent introduced the influential 'marketplace ofideas' theory, which became a cornerstone of modern First Amendment jurisprudence. Although the majority's view prevailed at the time, Holmes's powerful defense of free expression eventually became the dominant legal standard in later decades.
Unlock the full brief for Abrams v. United States