Abrams v. United States

What test or standard did Justice Clarke use in Abrams? Do you think the Court’s decision was biased against the defendants because they were immigrants and radicals? How does Holmes’ dissent clarify the meaning of the “clear and present danger” test? Explain Holmes’ “free trade in ideas” metaphor. What are some of the metaphor’s strengths and weaknesses? Are there significant differences between the marketplace of consumer goods and the marketplace of ideas? What did Holmes mean when he said that “time has upset many fighting faiths”? To what extent was Holmes’ metaphor influenced by Social Darwinism?
According to Justice Holmes, how did the facts and circumstances in Abrams differ from those of Schenck? Do you think Justice Holmes’ dissenting opinion in Abrams consistent with his reasoning in the previously decided cases of Schenck, Frohwerk, and Debs?

Jacob Abrams was one of five defendants in the case. All the defendants were well-educated, Russian Jewish immigrants seeking asylum from the czar’s antisemitic policies. All were fervent socialists and anarchists, including Mollie Steimer who called for the abolition of all authority and private property. Objecting to the Wilson administration’s expeditionary force to Russia in 1918, they printed and distributed several thousand leaflets in both English and Yiddish calling for a general strike throughout the country and the cessation of weapons production. Some of these leaflets were thrown from the top of a building where they fell on the street for passersby to pick up. While the Wilson administration claimed that the expeditionary force was sent to secure the Eastern Front against Germany, the defendants denounced it as an imperialist effort to interfere with the Russian Revolution. They were prosecuted under the Sedition Act of 1918, an amendment to the Espionage Act that extended punishment not only to the obstruction of the draft, but more broadly to any speech that forcefully criticized the war effort. Troublingly similar to the repressive Sedition Act of 1798, the 1918 amendment made it a crime to “utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States.” Surprisingly, Justice Holmes, who sustained convictions in the recently decided cases of Schenck, Frohwerk, and Debs, dissented in Abrams. He was joined by Justice Brandeis. Henceforth, the two would establish themselves as “the Great Dissenters” for their eloquent defense of free speech. Holmes insisted that his reasoning in Abrams was consistent with Schenck. However, scholars believe that he modified his position given his correspondence with colleagues and intellectuals at the time. Holmes’ dissent in Abrams is famous for its eloquent use of “the marketplace of ideas” metaphor, which has since dominated the Court’s understanding of the First Amendment.

—Joseph R. Fornieri

Source: 250 U.S. 616, https://www.law.cornell.edu/supremecourt/text/250/616.

  1. JUSTICE CLARKE delivered the opinion of the court.

On a single indictment, containing four counts, the five plaintiffs in error,[1] hereinafter designated the defendants, were convicted of conspiring to violate provisions of the Espionage Act of Congress (§ 3, Title I, of Act approved June 15, 1917, as amended May 16, 1918, 40 Stat. 553).

Each of the first three counts charged the defendants with conspiring, when the United States was at war with the Imperial government of Germany, to unlawfully utter, print, write, and publish: in the first count, “disloyal, scurrilous, and abusive language about the form of government of the United States”; in the second count, language “intended to bring the form of government of the United States into contempt, scorn, contumely, and disrepute”; and in the third count, language “intended to incite, provoke, and encourage resistance to the United States in said war.” The charge in the fourth count was that the defendants conspired, “when the United States was at war with the Imperial German government, unlawfully and willfully, by utterance, writing, printing, and publication, to urge, incite, and advocate curtailment of production of things and products, to wit, ordnance and ammunition, necessary and essential to the prosecution of the war.”

The offenses were charged in the language of the act of Congress.

It was charged in each count of the indictment that it was a part of the conspiracy that the defendants would attempt to accomplish their unlawful purpose by printing, writing, and distributing in the city of New York many copies of a leaflet or circular, printed in the English language, and of another printed in the Yiddish language, copies of which, properly identified, were attached to the indictment.

All of the five defendants were born in Russia. They were intelligent, had considerable schooling, and, at the time they were arrested, they had lived in the United States terms varying from five to ten years, but none of them had applied for naturalization. Four of them testified as witnesses in their own behalf, and, of these, three frankly avowed that they were “rebels,” “revolutionists,” “anarchists,” that they did not believe in government in any form, and they declared that they had no interest whatever in the government of the United States. The fourth defendant testified that he was a “socialist” and believed in “a proper kind of government, not capitalistic,” but, in his classification, the government of the United States was “capitalistic.”

It was admitted on the trial that the defendants had united to print and distribute the described circulars, and that five thousand of them had been printed and distributed about the 22nd day of August 1918. The group had a meeting place in New York City, in rooms rented by defendant Abrams under an assumed name, and there the subject of printing the circulars was discussed about two weeks before the defendants were arrested. The defendant Abrams, although not a printer, on July 27, 1918, purchased the printing outfit with which the circulars were printed and installed it in a basement room where the work was done at night. The circulars were distributed, some by throwing them from a window of a building where one of the defendants was employed and others secretly, in New York City.

The defendants pleaded “not guilty,” and the case of the government consisted in showing the facts we have stated, and in introducing in evidence copies of the two printed circulars attached to the indictment, a sheet entitled “Revolutionists Unite for Action,” written by the defendant Lipman, and found on him when he was arrested, and another paper, found at the headquarters of the group, and for which Abrams assumed responsibility.

Thus, the conspiracy and the doing of the overt acts charged were largely admitted and were fully established.

On the record thus described, it is argued, somewhat faintly, that the acts charged against the defendants were not unlawful because within the protection of that freedom of speech and of the press which is guaranteed by the First Amendment to the Constitution of the United States, and that the entire Espionage Act is unconstitutional because in conflict with that amendment.

This contention is sufficiently discussed and is definitely negatived in Schenck v. United States.[2] . . .

The first of the two articles attached to the indictment is conspicuously headed, “The Hypocrisy of the United States and her Allies.” After denouncing President Wilson as a hypocrite and a coward because troops were sent into Russia, it proceeds to assail our government in general, saying: “His [the president’s] shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington and vicinity.”

It continues: “He [the president] is too much of a coward to come out openly and say: ‘We capitalistic nations cannot afford to have a proletarian republic in Russia.’ ”

Among the capitalistic nations, Abrams testified, the United States was included.

Growing more inflammatory as it proceeds, the circular culminates in: “The Russian Revolution cries: Workers of the World! Awake! Rise! Put down your enemy and mine!”

“Yes! friends, there is only one enemy of the workers of the world and that is CAPITALISM.”

This is clearly an appeal to the “workers” of this country to arise and put down by force the government of the United States which they characterize as their “hypocritical,” “cowardly,” and “capitalistic” enemy.

It concludes: “Awake! Awake! you Workers of the World!”


The second of the articles was printed in the Yiddish language and, in the translation, is headed, “Workers—Wake up.” After referring to “his Majesty, Mr. Wilson, and the rest of the gang; dogs of all colors,” it continues: “Workers, Russian emigrants, you who had the least belief in the honesty of our Government,” which defendants admitted referred to the United States government, “must now throw away all confidence, must spit in the face the false, hypocritic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war.”

The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the government of the United States, and to cease to render it assistance in the prosecution of the war.

It goes on: “With the money which you have loaned, or are going to loan them, they will make bullets not only for the Germans, but also for the Workers Soviets of Russia. Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.” . . .

Again, the spirit becomes more bitter as it proceeds to declare that—

“America and her Allies have betrayed (the Workers). Their robberish aims are clear to all men. The destruction of the Russian Revolution, that is the politics of the march to Russia.”

“Workers, our reply to the barbaric intervention has to be a general strike! An open challenge only will let the Government know that not only the Russian Worker fights for freedom, but also here in America lives the spirit of Revolution.”

This is not an attempt to bring about a change of administration by candid discussion, for, no matter what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create an attempt to defeat the war plans of the government of the United States by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war.

This purpose is emphasized in the next paragraph, which reads:

“Do not let the Government scare you with their wild punishment in prisons, hanging, and shooting. We must not and will not betray the splendid fighters of Russia. Workers, up to fight.”

After more of the same kind, the circular concludes:

“Woe unto those who will be in the way of progress. Let solidarity live!”

It is signed, “The Rebels.”

That the interpretation we have put upon these articles, circulated in the greatest port of our land, from which great numbers of soldiers were at the time taking ship daily, and in which great quantities of war supplies of every kind were at the time being manufactured for transportation overseas, is not only the fair interpretation of them, but that it is the meaning which their authors consciously intended should be conveyed by them to others is further shown by the additional writings found in the meeting place of the defendant group and on the person of one of them. One of these circulars is headed: “Revolutionists! Unite for Action!”

After denouncing the president as “Our Kaiser” and the hypocrisy of the United States and her allies, this article concludes: “Socialists, Anarchists, Industrial Workers of the World, Socialists, Labor party men and other revolutionary organizations, Unite for action, and let us save the Workers’ Republic of Russia.”

“Know you lovers of freedom that, in order to save the Russian Revolution, we must keep the armies of the allied countries busy at home.”

Thus was again avowed the purpose to throw the country into a state of revolution if possible, and to thereby frustrate the military program of the government.

The remaining article, after denouncing the resident for what is characterized as hostility to the Russian Revolution, continues:

“We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case the United States will participate in that bloody conspiracy against Russia, to create so great a disturbance that the autocrats of America shall be compelled to keep their armies at home, and not be able to spare any for Russia.”

It concludes with this definite threat of armed rebellion:

“If they will use arms against the Russian people to enforce their standard of order, so will we use arms, and they shall never see the ruin of the Russian Revolution.”

These excerpts sufficiently show that, while the immediate occasion for this particular outbreak of lawlessness on the part of the defendant alien anarchists may have been resentment caused by our government’s sending troops into Russia as a strategic operation against the Germans on the eastern battle front, yet 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. A technical distinction may perhaps be taken between disloyal and abusive language applied to the form of our government or language intended to bring the form of our government into contempt and disrepute, and language of like character and intended to produce like results directed against the president and Congress, the agencies through which that form of government must function in time of war. But it is not necessary to a decision of this case to consider whether such distinction is vital or merely formal, for the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war, as the third count runs, and the defendants, in terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war as is charged in the fourth count. Thus, it is clear not only that some evidence, but that much persuasive evidence, was before the jury tending to prove that the defendants were guilty as charged in both the third and fourth counts of the indictment, and, under the long established rule of law hereinbefore stated, the judgment of the district court must be Affirmed.

  1. JUSTICE HOLMES dissenting.

. . . I never have seen any reason to doubt that the questions of law that alone were before this Court in the cases of Schenck, Frohwerk, and Debs were rightly decided. I do not doubt for a moment 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. The power undoubtedly is greater in time of war than in time of peace, because war opens dangers that do not exist at other times.

But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. 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 where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. . . .

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. 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 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. I wholly disagree with the argument of the government that the First Amendment left the common law as to seditious libel in force.[3] History seems to me against the notion. I had conceived that the United States, through many years, had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. 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.” Of course, I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that, in their conviction upon this indictment, the defendants were deprived of their rights under the Constitution of the United States.

  1. JUSTICE BRANDEIS concurs with the foregoing opinion.
  1. 1. The party who appeals a decision of a lower court.
  2. 2. Schenck v. United States
  3. 3. The common law of seditious libel punished any defamatory statements about the British Crown or government, even if what critics said was true. Holmes argued that the American Founders rejected this repressive doctrine in support of broader protection of free speech.
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