Abrams v. United States (1919)
Background:
 Abrams and the other defendants were all born in Russia. They were intelligent and
had considerable schooling.
 Three of them testified as witnesses in their own behalf, and called themselves
revolutionists and they did not believe in government of any form and said they had no
interest in the government of the United States.
 The fourth said he was a socialist and believed in a proper form of government that
was not capitalistic and in his opinion the U.S. government was capitalistic.
 The leaflets were printed in English and Yiddish criticizing American intervention in the
Russian Revolution. They met in rooms rented by Abrams, who bought a printing outfit,
and installed it in a basement where the work was done at night. Some of the leaflets
were distributed by throwing them from a window where one of the defendants was
employed.
 WWI was still in progress.
The White Court
Mollie Steimer, Jacob Abrams, Hyman Lachowsky and Samuel Lipman
were immigrant NY anarchists who were tried by the government under
the "Espionage Act". They dumped anarchist tracts from New York City
buildings, leading to convictions which the Supreme Court considered in
Abrams v U. S. (Jacob Abrams is at far right.)
Source: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/clear&pdanger.htm
Main Points:
 Abrams and his colleagues were charged on 4 counts of conspiring:
1) “disloyal and abusive language about the form of Government of the United
States”
2) the language “intended to bring the form of Government of the United States
into
contempt”
3) the language "intended to incite, provoke, and encourage resistance to the
United States in said war”
4) “when the United States was at war with the Imperial German
Government…unlawfully and willfully ... to urge, incite and advocate curtailment
of production of…ordnance and ammunition, necessary and essential to the
prosecution of the war”
 Although it was argued that the Espionage Act was unconstitutional and
in conflict with the First Amendment, it was argued briefly and proven
otherwise:
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 negative in Schenck v.
United States.
Main Points:
 According to Holmes there was not enough evidence to promote danger
or hinder the success of the government:
“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.”
 They were found guilty by the original court:
“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 war...Thus ...the defendants were guilty as charged...and...the
judgment of the District Court must be Affirmed.”
 If in the event the threat poses no “clear and present danger,” the best
place to dismiss dangerous or disagreeable ideas is in the market place
of ideas. Persuasion is more persistent than imprisoning people with
dangerous and disagreeable ideas.
“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.”
Historical Significance
• Abrams v. United States was during the time
while America intervening into the Russian
Revolution
• The case involved the 1918 amendment to the
Espionage Act of 1917 which made it a criminal
offense to criticize the U.S. Federal Government.
• The case was overturned during the Vietnam
War Era in Brandenburg v. Ohio. The decision
was based on Holmes’ argument of “clear and
present danger”
Abrams v. United States
• Work taken from the United States
Reports of the U.S. Supreme Court
• Argued October 21-22, 1919
• Decided November 10, 1919
Court Membership
• Chief Justice was Edward Douglass
White.
• Associate Justices: Joseph McKenna,
Oliver Holmes, William Day, Willis Van
Devanter, Mahlon Pitney, James
McReynolds, Lois Brandeis, and John
Hessin Clarke
• Case opinions: Majority by Clarke and Dissent by Holmes
Defendants
• Jacob Abrams and four colleagues were
convicted of conspiring to violate the
Espionage Act.
Main Points
According to Mr. Justice Clarke and the opinion of the courts,
Abrams and others advocated a strike in
munitions production and the violent
overthrow of the Government.
– “Courts charge the defendants with conspiring to unlawfully utter, print,
write and publish abusive language about the form of government of the
United States.”
– “The manifest purpose of such a publication was to create an attempt to
defeat the war plans of the government, by bringing upon the country
the paralysis of a general strike, thereby resting production of munitions
and other things essential to the conduct of war.”
Main Points
The points of Mr. Justice Holmes dissenting,
Abrams and others should not be viewed as
criminals due to their writings
– “Advocacy of a general strike do urge curtailment of production of things
necessary to the prosecution of the war within the meaning of the Act of 1917.
But to make the conduct criminal that statute requires that it should be with intent
by such curtailment to cripple or hinder the United States in the persecution of
the war.”
The first amendment should protect Abrams
freedom of speech
– “ I refer to the First Amendment to the Constitution that Congress shall make no
law abridging the freedom or speech.”
Main Points
Congress cannot forbid all effort to
change the mind of the country.
– “ The principle of the right to free speech is always the same. It is only
the present danger or 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.”
• The truth has to be accepted within
the competition of the market.
– “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.”
Historical Significance
• Abrams v. United States was during the time
while America intervening into the Russian
Revolution
• The case involved the 1918 amendment to the
Espionage Act of 1917 which made it a criminal
offense to criticize the U.S. Federal Government.
• The case was overturned during the Vietnam
War Era in Brandenburg v. Ohio
• Based on Holmes argument of “clear and
present danger”
Questions to Consider??
• If we can agree that what Abrams
advocates in his pamphlet is wrong, how
can we most effectively discredit his
argument?
• When does one cross the line between
freedom of speech and immediate danger
or evil intent?